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Full text of "International law situations with solutions and notes, 1937"

NAVAL WAR COLLEGE 



International Law 
Situations 

WITH SOLUTIONS AND NOTES 

1937 



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NAVAL WAR COLLEGE 



International Law 
Situations 



WITH SOLUTIONS AND NOTES 



1937 



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PREFACE 

"International Law Situations, with Solutions 
and Notes, 1937," has been prepared, as formerly, 
by George Grafton Wilson, LL. D., professor 
emeritus of international law, Harvard University. 
It covers topics which have been the subject of 
discussion by members of the senior and junior 
classes of 1938. The method followed has been to 
propound situations for consideration by members 
of the classes and, after critical discussion, to 
organize the material for publication. 

While the conclusions reached as a result of the 
discussions are in no way official, the notes afford a 
convenient survey of material relating to the sub- 
ject presented, and they should be of value for pur- 
poses of reference. 

Criticism concerning the contents of this volume 
and suggestions regarding situations to be given 
consideration in subsequent volumes will be wel- 
comed by the Naval War College. 

C. P. Snyder, 
Rear Admiral, United States Navy, 

President, Naval War College. 

June 13, 1938. 

ni 



CONTENTS 

Page 

Situation I. — Protection by vessels of war 1 

Solution: 

(a) land 2 3 

(6) 1 and2 3 

(c) 3 

(d) land 2 3 

Notes: 

Pan American treaties: 

(a) General survey. 4 

(6) Inter- American consulation and cooperation 5 

(c) Fulfillment of existing treaties, 1936 6 

(d) Pan American solidarity, 1936 8 

Observance of international law 10 

Grotius on limits of strait 10 

"Straits" convention, Montreux, July 20, 1936 11 

Defensive sea areas, United States 13 

Navy regulations, United States 14 

Restrictions on travel 15 

Neutrality 17 

Common attitude 18 

American solidarity, 1914 19 

Regional understandings 22 

American solidarity, 1917 22 

Pan American treaties, 1823-1936 24 

Habana convention, 1928 25 

Limitation on Habana convention, 1928 26 

Treaties of 1933 27 

Conventions, Buenos Aires, 1936 28 

Passengers bound for belligerent ports 28 

Habana convention, 1928, on transit 31 

Cargoes contraband 31 

The Hakan 32 

Reservations on contraband, 1 936 33 

Restriction of Joint Resolution of United States on 

export of arms, etc 34 

Prior treaties 34 

Resume" _ 35 

Solution: 

(a) 1 and 2 37 

(6) 1 and 2 37 

(c) 37 

(d) 1 and 2 38 

v 



VI 00NTENT8 

Page 

Situation II. — Naval protection during strained relations 39 

Solution: 

(a) 40 

(6) 40 

(c) 40 

(rf) 40 

Notes: 

Strained relations 40 

Use of force 41 

Distinction between belligerent and protective action. 43 

Purpose of act of May 1, 1937 45 

National and international neutrality laws 45 

Hostilities without declaration 47 

Prior declaration 48 

Declaration of war 49 

Hague Convention on declaration of war 50 

Embargo Act, 1807 . 52 

British hovering, 1916 53 

Restriction on exports 56 

Attitude of the United States in 1921 58 

Restrictions on carriage of munitions to Spain 59 

Attitude of United States Navy 60 

American policy, 1937 61 

Innocent passage 65 

General conclusions 67 

Solution: 

(a) 68 

(6) 68 

(c) 68 

(d) 68 

Situation III. — Jurisdiction and polar areas 69 

Solution: 

(a) 70 

(6) 70 

(c) 70 

(d) 70 

(c) 70 

(/) 70 

Notes: 

Jurisdiction 71 

Acquisition of jurisdiction 71 

Notification and occupation 72 

The Bulama case, 1870 73 

Institut de Droit International, 1888 74 

British position, 1889 74 

Falkland Island dependencies 75 

Clipperton Island case, 1931 76 

Contiguity and propinquity doctrines 77 



CONTENTS VII 

Situation III. — Jurisdiction and polar areas — Continued. 

Notes — Continued. Page 

Polar regions 81 

Objectives in polar explorations 83 

Fauchille on polar domain : 83 

Opinion of Professor Hyde 84 

Russian rules, 1821_ 85 

The Arctic and the United States 88 

Alaska and the polar area 91 

Interpretation of "jusqu'a" 92 

Fur seals 94 

Hinterland doctrine 95 

Russian customs waters, 1910 96 

Russia on maritime jurisdiction, 1912 97 

Soviet decree, 1926 99 

British Soviet temporary agreement, 1930 100 

Lakhtine's statement of U. S. S. R. attitude, 1930 101 

Bering Sea award, 1893 106 

Width of territorial waters 107 

Canadian Arctic 107 

Canadian claim, 1924 110 

Recognition of Arctic sovereignty 110 

Ross Dependency, 1923 113 

American writers on polar areas 114 

The polar sector 116 

The sector theory 116 

Opinion of Smedal 117 

Aerial sovereignty 117 

Aerial commerce 118 

Aircraft and neutral jurisdiction 118 

Aircraft in distress 119 

Commission of Jurists, 1923 119 

Transit in polar regions . 121 

Merchant submarines 121 

R6sum6: 

(a) 125 

(b) 127 

(c) 127 

(d) 127 

(«) 127 

if) 130 

Solution: 

(a) 130 

(b) 131 

(c) 131 

(d) • 131 

(e) 131 

(/) 131 



VIII CONTENTS 

Appendixes : Page 
I. Treaty to avoid or prevent conflicts between the Ameri- 
can States (Gondra treaty), May 3, 1923 132 

II. General treaty of inter-American arbitration, January 

5, 1929 138 

III. General convention of inter-American conciliation, Jan- 

uary 5, 1929 146 

IV. Anti-war treaty of non-aggression and conciliation 

(Saavedra Lamas treaty), October 10, 1933 152 

V. Additional protocol to the general convention of inter- 
American conciliation, December 26, 1933 158 

VI. Convention for the maintenance, preservation ,and re- 
establishment of peace, December 23, 1936 160 

VII. Convention to coordinate, extend, and assure the ful- 
fillment of the existing treaties between the Ameri- 
can states, December 23, 1936 163 

VIII. Additional protocol relative to non-intervention, De- 
cember 23, 1936 169 

IX. Joint resolution of Congress, May 1, 1937 171 



Situation I 
PROTECTION BY VESSELS OF WAR 

States X and Y, non- American states, are at war. 
State Z, an American state, is an ally of state Y. 
Other states are neutral. 

States B, C, and D are American states parties 
to the Habana treaties of 1928, 1 the Montevideo 
treaties of 1933, 2 and the Buenos Aires treaties of 
1936, 3 but state Z is not a party to any of the above 
treaties though carefully observing international 
law. 

States L, M, and N* are non- American states and 
not parties to any of the above treaties. 

(a) The Bami, an innocent merchant vessel in 
ballast lawfully flying the flag of state B, is passing 
through a strait which is fifteen miles wide and is 
between two islands belonging to state Y when it 
is seized eight miles from land by the Yosu, a vessel 
of war of Y, on the ground that this area is a pro- 
claimed war zone and closed to all ships. The 
Bami requests protection of the Bosu, a vessel of 
war of state B, which proceeds immediately and 
overtakes the Bami and the Yosu in the strait seven 



1 Convention on maritime neutrality. 1935 Naval War College, In- 
ternational Law Situations, p. 115; Convention concerning the rights 
and duties of states in the event of civil strife. Ibid, p. 123. 

2 Additional protocol to the general convention of inter-American 
conciliation. Post, p. 158. 

"Convention for the maintenance, preservation, and reestablish- 
ment of peace. Post, p. 160. 

Additional protocol relative to non-intervention. Post, p. 169. 

Convention to coordinate, extend, and assure the fulfillment of the 
existing treaties between the American States. Post, p. 163. 

1 



2 PROTECTION BY VESSELS OF WAR 

miles from land. What action may the Bosu law- 
fully take? 

( b ) The Zosu, a vessel of war of state Z, captures 
and puts a prize crew on board the Lami, a mer- 
chant vessel lawfully flying the flag of state L and 
bound for a port of L, passing through the same 
strait w T ith a cargo of bananas consigned to a mer- 
chant in an inland state bordering on state X. The 
Losu, a vessel of war of state L, later meets the 
Lami five miles from land. What action may the 
Losu lawfully take if asked to protect the Lami? 

(c) State X, not able effectively to blockade any 
port of Y, proclaims all articles bound for Y to be 
contraband. State C has not included oranges, 
though state D has included oranges in the list of 
prohibited exports. The Xalu, a vessel of war of 
state X, seizes on the ground of carriage of contra- 
band the Cemi, a merchant vessel, with a cargo of 
oranges two-thirds from state C and one-third from 
state D, lawfully flying the flag of state C and bound 
for a non-military port of Y. What action may 
the Cosa, a vessel of war of state C, lawfully take 
when appealed to by the Cemi? 

(d) The Nami, a merchant vessel lawfully fly- 
ing the flag of state N, calls at a port of state D and 
takes on board passengers, nationals of state D, 
bound for state X. State D has prohibited the 
sailing of its nationals in the war area during the 
hostilities. The Nami also has on board passen- 
gers, nationals of states L and M bound for state X. 
The Zosu visits the Nami 100 miles at sea off state 
N and is removing the passengers, nationals of 
states D, L, and M, when the Losu approaches and 
the nationals of L request protection. The na- 
tionals of D and M also request protection of the 



SOLUTION 3 

Dosu, an approaching vessel of war of state D. 
What action may the Losu and Dosu lawfully take ? 

SOLUTION 

(a) (1) The commander of Bosu should raise 
question with the commander of Yosu as to whether 
the Bami has not been illegally seized on high seas 
and request the release of the Bami. 

(2) The commander of the Bosu should report to 
the Navy Department his action. 

(&) (1) As the Zosa has placed a prize crew on 
the Lami and is sending the Lami in for adjudica- 
tion, the commander of the Losu may take no fur- 
ther action other than to inquire reasons for 
capture. 

(2) The commander of the Losu should report 
the circumstances to Navy Department. 

(c) As oranges may legally be declared contra- 
band and as the entire cargo of the Cemi may be 
liable to condemnation, the capture of the Cemi by 
the Xalu is lawful and the commander of the Cosa 
may take no further action other than to report the 
facts. 

(d) (1) The passengers on the Nami being un- 
der the jurisdiction of state N, no third state may 
take action in regard to their safe removal in time 
of war by a vessel of war of state Z. This becomes 
primarily a matter of concern between states N 
and Z. 

(2) The commanders of the Losu and Dosu may 
request reasons for the action of the Zosu and re- 
port the facts to their Navy Departments for ap- 
propriate action. The subsequent treatment of the 
nationals of D, L, and M may become a matter for 
action of those states. 



4 PROTECTION BY VESSELS OF WAR 

Notes 

Pan American treaties. — 

(a) General survey. — President Coolidge in 
opening the Sixth International Conference of 
American States, Habana, January 16, 1928, re- 
viewing the history of the American states and 
their methods of " resolving international differ- 
ences without resort to force," said: 

"If these conferences mean anything, they mean the bring- 
ing of all our people more definitely and more completely 
under the reign of law. After all, it is in that direction 
that we must look with the greatest assurance for human 
progress. We can make no advance in the realm of eco- 
nomics, we can do nothing for education, we can accomplish 
but little even in the sphere of religion, until human affairs 
are brought within the orderly rule of law. The surest ref- 
uge of the weak and the oppressed is in the law. It is pre- 
eminently the shield of small nations. This is necessarily a 
long, laborious process, which must broaden out from prece- 
dent to precedent, from the general acceptance of principle 
to principle." (Report of the Delegates of the United 
States of America, p. 68.) 

The aspiration for peace was further voiced in 
the pronouncement of President Roosevelt, 1933, of 
a "good neighbor" policy. Secretary Hull at the 
opening of the Buenos Aires Conference in 1936 
had among other objectives enunciated as vitally 
important for the Western World "a common pol- 
icy of neutrality' ' and that "international law 
should be reestablished, revitalized, and strength- 
ened.' ' On his return, speaking of the work of the 
Conference, he said: 

"This welding of inter- American friendship has now be- 
come a powerful, positive force for peace throughout the 
world." (January 13, 1937.) 



PAN AMERICAN TREATIES 5 

The Conventions of 1928, 1933, and 1936 show the 
trend of American states toward a policy of peace, 
and were negotiated with view to advancing that 
policy. Accordingly they should be interpreted in 
this spirit. 

It should be noted that by becoming party to the 
above convention of 1936, a state commits itself to 
obligations under five other agreements, 1923-1933, 
mentioned in Article I. 

(6) Inter-American consultation and coopera- 
tion. — The "Convention to coordinate, extend, and 
assure the fulfillment of the existing treaties be- 
tween the American states," Buenos Aires, Decem- 
ber 23, 1936, affirms the loyalty of American states 
to the principles of treaties of recent years aiming 
to assure peace without the use of force. These 
include the treaties negotiated among American 
states such as those of Santiago, May 3, 1923 ; Paris, 
August 28, 1928; Washington, January 5, 1929; 
Rio de Janeiro, October 10, 1933. 

Article 6 of the Convention of Buenos Aires, 
December 23, 1936, provides : 

"Without prejudice to the universal principles of neutral- 
ity provided for in the case of an international war outside 
of America and without affecting the duties contracted by 
those American States members of the League of Nations, 
the High Contracting Parties reaffirm their loyalty to the 
principles enunciated in the five agreements referred to in 
Article 1, and they agree that in the case of an outbreak of 
hostilities or threat of an outbreak of hostilities between two 
or more of them, they shall, through consultation, imme- 
diately endeavor to adopt in their character as neutrals a 
common and solidary attitude, in order to discourage or 
prevent the spread or prolongation of hostilities. 

"With this object, and having in mind the diversity of 
cases and circumstances, they may consider the imposition 
of prohibitions or restrictions on the sale or shipment of 



£ PROTECTION BY VESSELS OF WAR 

arms, munitions and implements of war, loans or other finan- 
cial help to the States in conflict, in accordance with the 
municipal legislation of the High Contracting Parties, and 
without detriment to their obligations derived from other 
treaties to which they are or may become parties." Pan 
American Union. Congress and Conference Series, No. 22, 
pp. 37, 39; post p. 166.) 

In this article the American states agree under 
certain circumstances that "they shall, through 
consultation, immediately endeavor to adopt in 
their character as neutrals a common and solidary 
attitude in order to discourage or prevent the 
spread or prolongation of hostilities" "without 
prejudice to the universal principles of neutrality" 
or "treaties to which they are or may become 
parties. ' ' The American states ' ' in their character 
as neutrals' ' propose in their "common and 
solidary attitude" "the imposition of prohibitions 
or restrictions on the sale or shipment of arms, 
munitions, and implements of war, loans or other 
financial help to the states in conflict, in accordance 
with the municipal legislation of the High Con- 
tracting Parties, and without detriment to their 
obligations derived from other treaties to which 
they are or may become parties." 

(c) Fulfillment of existing treaties, 1936. — On 
July 15, 1937, the President ratified on behalf of the 
United States the "Convention to coordinate, ex- 
tend, and assure the fulfillment of the existing 
treaties between the American states" which was 
signed at Buenos Aires, December 23, 1936. This 
is a comprehensive regional agreement by which 
there is recognized differences in the binding force 
of certain regional treaties and of universal prin- 
ciples of international law applicable outside the 
Americas. 



MAINTENANCE OF PEACE 7 

In Article 1 of this Convention the agreements to 
which the " Governments represented at the Inter- 
American Conference for the Maintenance of 
Peace" are bound are enumerated: 

"Taking into consideration that, by the Treaty to Avoid 
and Prevent Conflicts between the American States, Signed 
at Santiago, May 3, 1923, 4 (known as the Gondra Treaty), 
the High Contracting Parties agree that all controversies 
which it has been impossible to settle through diplomatic 
channels or to submit to arbitration in accordance with exist- 
ing treaties shall be submitted for investigation and report 
to a Commission of Inquiry : 

"That by the Treaty for the Renunciation of War, signed 
at Paris on August 28, 1928, 5 (known as the Kellogg- Briand 
Pact, or Pact of Paris), the High Contracting Parties sol- 
emnly declare in the names of their respective peoples that 
they condemn recourse to war for the solution of interna- 
tional controversies and renounce it as an instrument of 
national policy in their relations with one another; 

"That by the General Convention of Inter-American Con- 
ciliation, 6 signed at Washington, January 5, 1929, the High 
Contracting Parties agree to submit to the procedure of con- 
ciliation all controversies between them, which it may not 
have been possible to settle through diplomatic channels, and 
to establish a "Commission of Conciliation" to carry out the 
obligations assumed in the Convention; 

"That by the General Treaty of Inter- American Arbitra- 
tion, 7 signed at Washington, January 5, 1929, the High Con- 
tracting Parties bind themselves to submit to arbitration, 
subject to certain exceptions, all differences between them of 
an international character, which it has not been possible to 
adjust by diplomacy and which are juridical in their nature 
by reason of being susceptible of decision by the application 
of the principles of law, and, moreover, to create a procedure 
of arbitration to be followed; and 



*Post, p. 132. 

6 1929 Naval War College International Law Situation, p. 104. 

"46 Stat. 2209; post, p. 146. 

7 49 Stat. 3153; post, p. 138. 



g PROTECTION BY VESSELS OF WAR 

"That by the Treaty of Non-Aggression and Conciliation, 8 
signed at Rio de Janeiro, October 10, 1933, (known as the 
Saavedra Lamas Treaty) , the High Contracting Parties sol- 
emnly declare that they condemn wars of aggression in their 
mutual relations or in those with other States and that the 
settlement of disputes or controversies between them shall 
be effected only by pacific means which have the sanction of 
international law, and also declare that as between them ter- 
ritorial questions must not be settled by violence, and that 
they will not recognize any territorial arrangement not ob- 
tained by pacific means, nor the validity of the occupation 
or acquisition of territories brought about by force of arms, 
and, moreover, in a case of non-compliance with these obliga- 
tions, the contracting States undertake to adopt, in their 
character as neutrals, a common and solidary attitude and to 
exercise the political, juridical or economic means authorized 
by international law, and to bring the influence of public 
opinion to bear, without, however, resorting to intervention, 
either diplomatic or armed, subject nevertheless to the atti- 
tude that may be incumbent upon them by virtue of their 
collective treaties; and, further, undertake to create a pro- 
cedure of conciliation ; 

"The High Contracting Parties reaffirm the obligations 
entered into to settle, by pacific means, controversies of an 
international character that may arise between them." 
(Treaty Series, No. 926.) 

(d) Pan American solidarity, 1936. — At the 
Buenos Aires Conference, 1936, a formal statement 
of common aspiration was agreed upon by the 
twenty-one American states. It was stated in the 
Declaration of Principles of Inter- American Soli- 
darity and Cooperation, that 

"The Governments of the American Eepublics, having 
considered : 

"That they have a common likeness in their democratic 
form of government, and their common ideals of peace and 
justice, manifested in the several Treaties and Conventions 



49 Stat. 3363, 3375 ; post, p. 152. 



PAN AMERICAN SOLIDARITY, 1936 9 

which they have signed for the purpose of constituting a 
purely American system tending towards the preservation of 
peace, the proscription of war, the harmonious development 
of their commerce and of their cultural aspirations demon- 
strated in all of their political, economic, social, scientific 
and artistic activities ; 

"That the existence of continental interests obliges them to 
maintain solidarity of principles as the basis of life of the 
relations of each to every other American nation ; 

"That Pan Americanism, as a principle of American In- 
ternational Law, by which is understood a moral union of 
all of the American Republics in defense of their common 
interests based upon the most perfect equality and reciprocal 
respect for their rights of autonomy, independence and free 
development, requires the proclamation of principles of 
American International Law; and 

"That it is necessary to consecrate the principle of Ameri- 
can solidarity in all non-continental conflicts, especially since 
those limited to the American Continent should find a peace- 
ful solution by the means established by the Treaties and 
Conventions now in force or in the instruments hereafter to 
be executed. 

"The Inter- American Conference for the Maintenance of 
Peace Declares : 

"1. That the American Nations, true to their republican 
institutions, proclaim their absolute juridical liberty, their 
unrestricted respect for their several sovereignty and the 
existence of a common democracy throughout America ; 

"2. That every act susceptible of disturbing the peace of 
America affects each and every one of them, and justifies the 
initiation of the procedure of consultation provided for in 
the Convention for the Maintenance, Preservation and Re- 
establishment of Peace, executed at this Conference; and 

"3. That the following principles are accepted by the 
international American community; 

"(a) Proscription of territorial conquest and that, in con- 
sequence, no acquisition made through violence shall be 
recognized ; 

"(b) Intervention by one State in the internal or external 
affairs of another State is condemned ; 

93707—39 2 



] () PROTECTION BY VESSELS OF WAR 

u (c) Forcible collection of pecuniary debts is illegal; and 
" (d) Any difference or dispute between American nations, 
whatever its nature or origin, shall be settled by the methods 
of conciliation, or full arbitration, or through operation of 
international justice." (Pan American Union. Congress 
and Conference Series, No. 22, p. 60.) 

Observance of international law. — These conven- 
tions of recent years among American states have 
not merely affirmed the purpose to fulfill existing 
treaty agreements but in many articles have af- 
firmed the intention to support international law. 
In general this has been the case in regard to mat- 
ters to which the conventions do not specifically re- 
fer. There would, therefore, be a large field of 
international law to which the usually accepted 
principles would apply. This would be the case in 
most areas of maritime and fluvial jurisdiction, 
both in peace and in war. The jurisdiction over 
straits has been a subject for consideration for 
many years and has not been covered in a special 
American convention. 

In most maritime matters the generally accepted 
international law would apply among American 
states without reference to special treaties. Ques- 
tions as to straits have been discussed from early 
days of international law to recent times. 

Grotius on limits of strait. — After mentioning 
the acquisition of rights over rivers, Grotius in 
1625 says : 

"In the light of the example just given it would appear 
that the sea also can be acquired by him who holds the lands 
or both sides, even though it may extend above as a bay, or 
above and below as a strait, provided that the part of the sea 
in question is not so large that, when compared with the 
lands on both sides, it does not seem a part of them." (De 
Jure Belli ac Pacis [Carnegie Classic], Bk. II, chap. Ill, 
viii.) 



CONVENTION OF MONTREUX \\ 

From the days of Grotius and Bynkershoek, at- 
tempts have been made by many writers to make 
more definite the limits and nature of jurisdic- 
tional rights of adjacent states over narrow seas 
and straits. For this purpose conventions have 
often been concluded even in recent times. 

"Straits" convention, Montreux, July 20,1936. — 
The straits which for many years have received the 
most constant attention are the waters connecting 
the Aegean and Black Seas. These waters include 
"the Straits of the Dardanelles, the Sea of Mar- 
mora, and the Bosphorus comprised under the gen- 
eral term i Straits'." The use of these waters had 
been regulated by many agreements particularly 
since the Treaty of Adrianople, 1829. The Conven- 
tion of Lausanne of July 24, 1923, had regulated 
the use of the " Straits," but the Convention of 
Montreux, July 20, 1936, replaced the provisions of 
the Convention of Lausanne. The expression "not 
being a belligerent" replaces the word "neutral." 

Article 5 of the Montreux convention provides 
that: 

"In time of war, Turkey being belligerent, merchant ves- 
sels not belonging to a country at war with Turkey shall 
enjoy freedom of transit and navigation in the Straits on 
condition that they do not in any way assist the enemy. 

"Such vessels shall enter the Straits by day and their tran- 
sit shall be effected by the route which shall in each case be 
indicated by the Turkish authorities." (173 League of 
Nations Treaty Series, p. 213; 31 American Journal of 
International Law, Supplement, p. 4.) 

Article 20 further provides that : 

"In time of war, Turkey being belligerent, the provisions 
of Articles 10 to 18 shall not be applicable; the passage of 
warships shall be left entirely to the discretion of the Turk- 
ish Government.'' (Ibid, p. 8.) 



12 PROTECTION BY VESSELS OF WAR 

It is presumed in Article 21 that Turkey, when 
threatened with war, will make reasonable provi- 
sion for the passage of vessels of war which do not 
belong to the threatening state. 

Regulations restricting passage of non-belliger- 
ent merchant vessels to certain routes and to en- 
trance by day in such narrow waters as the 
" Straits'' seem, however, to be reasonable. 

This Article 5, above, is a material modification 
of the Convention of Lausanne, July 24, 1923, which 
is as follows : 

Article 2, Annex 1 (c). "In time of war, Turkey being a 
belligerent. 

"Freedom of navigation for neutral vessels and neutral 
non-military aircraft, if the vessel or aircraft in question 
does not assist the enemy, particularly by carrying contra- 
band, troops or enemy nationals. Turkey will have the right 
to visit and search such vessels and aircraft, and for this 
purpose aircraft are to alight on the ground or on the sea in 
such areas as are specified and prepared for this purpose by 
Turkey. The rights of Turkey to apply to enemy vessels 
the measures allowed by international law are not affected. 

"Turkey will have full power to take such measures as she 
may consider necessary to prevent enemy vessels from using 
the Straits. These measures, however, are not to be of such 
a nature as to prevent the free passage of neutral vessels, 
and Turkey agrees to provide such vessels with either the 
necessary instructions or pilots for the above purpose." 
(28 League of Nations Treaty Series, p. 115 ; 18 A. J. I. L. 
[1924], Supplement, p. 55.) 

Article 20 of the Montreux Convention above 
gives to Turkey much greater control of the pas- 
sage of the "Straits" than was provided under the 
Convention of Lausanne : 

Article 2, Annex 2 (c). "In time of war, Turkey being 
belligerent. 






DEFENSIVE SEA AREAS 13 

"Complete freedom of passage for neutral warships, with- 
out any formalities, or tax, or charge whatever, but under 
the same limitations as in paragraph 2 (a). 

"The measures taken by Turkey to prevent enemy ships 
and aircraft from using the Straits are not to be of such a 
nature as to prevent the free passage of neutral ships and 
aircraft, and Turkey agrees to provide the said ships and air- 
craft with either the necessary instructions or pilots for the 
above purpose. 

"Neutral military aircraft will make the passage of the 
Straits at their own risk and peril, and will submit to inves- 
tigation as to their character. For this purpose aircraft are 
to alight on the ground or on the sea in such areas as are 
specified and prepared for this purpose by Turkey." 

It is evident that even in regard to the Bosphorus 
and Dardanelles, long subject to international regu- 
lation, a final adjustment may not have been 
reached. Other areas have often been placed under 
special restriction, but not always without protest 
l)y other states. 

Defensive sea areas, United States. — An act, 
March 4, 1917, provided that whoever shall — 

"willfully, or wantonly violate any duly authorized and 
promulgated order or regulation of the President governing 
persons or vessels within the limits of defensive sea areas, 
which defensive sea areas are hereby authorized to be estab- 
lished by order of the President from time to time as may be 
necessary in his discretion for purposes of national defense, 
shall be punished, on conviction thereof in a district or cir- 
cuit court of appeals of the United States for the district or 
circuit in which the offense was committed, or into which the 
offender is first brought, by a fine of not more than $5,000, or 
by imprisonment for a term not exceeding five years, or by 
both, in the discretion of the court." (39 Stat. 1194; 1918 
^NTaval War College, International Law Documents, p. 162.) 

This act applied in time of peace provided for 
penalty to be determined by the district or circuit 
^ourt. Defensive sea areas were established under 



14 PROTECTION BY VESSELS OF WAR 

this act before the United States became a bellig- 
erent as in the case of Chesapeake Bay, Hampton 
Roads, and more than twenty-five other areas on 
April 5, 1917. Entrance to these areas was prohib- 
ited except as prescribed in conditions as to place, 
route, speed, conduct, etc. Failure to observe these 
regulations subjected the offender to the use of 
necessary force as well as prosecution. 

The exercise of control over defensive sea areas 
or other similar areas may give rise to contro- 
versy or to questions of conflict of authority in such 
areas. 

Navy regulations, United States. — As a general 
principle a state is under obligation to protect the 
lives and property of its citizens when in danger 
and merchant vessels lawfully employed. In some 
exceptional cases the United States had in early 
treaties agreed to protect the lives and property 
of citizens of other states. The general obligation 
as to injury or threatened injury to citizens or 
property is stated in the United States Navy 
Regulations as follows: 

"722. On occasions where injury to the United States or to 
citizens thereof is committed or threatened, in violation of 
the principles of international law or treaty rights, the com- 
mander in chief shall consult with the diplomatic representa- 
tive or consul of the United States, and take such steps as the 
gravity of the case demand, reporting immediately to the 
Secretary of the Navy all the facts. The responsibility for 
any action taken by a naval force, however, rests wholly upon 
the commanding officer thereof. 

"723. The use of force against a foreign and friendly state, 
or against anyone within the territories thereof, is illegal. 

"The right of self-preservation, however, is a right which 
belongs to States as well as to individuals, and in the case of 
States it includes the protection of the State, its honor, and 



NAVAL PROTECTION 15 

its possessions, and the lives and property of its citizens 
against arbitrary violence, actual or impending, whereby the 
State or its citizens may suffer irreparable injury. The con- 
ditions calling for the application of the right of self- 
preservation can not be defined beforehand, but must be left 
to the sound judgment of responsible officers, who are to per- 
form their duties in this respect with all possible care and 
forbearance. In no case shall force be exercised in time of 
peace otherwise than as an application of the right of self- 
preservation as above defined. It must be used only as a 
last resort, and then only to the extent which is absolutely 
necessary to accomplish the end required. It can never be 
exercised with a view to inflicting punishment for acts 
already committed." 

Under these provisions action by naval forces is 
to a high degree limited. Except in time of war in 
which the United States is a belligerent, there 
would rarely arise a condition of arbitrary vio- 
lence, actual or impending, " whereby the State or 
its citizens may suffer irreparable injury." 

These regulations of the United States are in 
accord with generally accepted practice and seem 
essential for the protection of recognized funda- 
mental rights of state existence. 

Restrictions on travel. — Under the Act of May 1, 
1937, 9 amending prior legislation the earlier pro- 
visions on " travel on vessels of belligerent states " 
were repeated. This Act if applied in Situation I 
made it possible for the President of the United 
States to "find that there exists a state of war be- 
tween, or among, two or more foreign states" and 
to "proclaim such fact." 

Section 9 of the Act of May 1, 1937, states that — 

"Whenever the President shall have issued a proclamation 
under the authority of section 1 of this Act it shall there- 



Post, pp. 171, 181. 



IQ PROTECTION BY VESSELS OF WAR 

after be unlawful for any citizen of the United States to 
travel on any vessel of the state or states named 
in such proclamation, except in accordance with such rules 
and regulations as the President shall prescribe: Provided, 
however, "That the provisions of this section shall not apply 
to a citizen of the United States traveling on a vessel whose 
voyage was begun in advance of the date of the President's 
proclamation, and who had no opportunity to discontinue his 
voyage after that date : And provided further, That they 
shall not apply under ninety days after the date of the Presi- 
dent's proclamation to a citizen of the United States return- 
ing from a foreign state to the United States. Whenever, in 
the President's judgment, the conditions which have caused 
him to issue his proclamation have ceased to exist, he shall 
revoke his proclamation and the provisions of this section 
shall thereupon cease to apply with respect to the state or 
states named in such proclamation, except with respect to 
offenses committed prior to such revocation." (50 Stat. 121, 
127.) 

This act shows the attitude of the United States 
toward travel upon vessels of certain states in time 
of a Presidentially proclaimed war. The act, how- 
ever, applies merely to the " vessel of the state or 
states named in such proclamation' ' and would 
place no limitation upon travel on vessels of other 
states not parties in the conflict. The penalty for 
violation of this law is under the domestic law of 
the United States as prescribed in Section 12 and 
not under international law. 

A state may prohibit its citizens from traveling 
in a specified manner and penalize them in case of 
violation of the prohibition, but such a law does not 
confer upon a foreign state any authority to inter- 
fere with such transit. In vessels under a foreign 
flag, the authority of the flag prevails, and in case 
of interference with this authority in violation of 
right, recourse rests in the state concerned. 



NEUTRALITY \f 

Neutrality. — The concept of neutrality has 
slowly developed. The support that the idea of 
neutrality has received has varied and at times has 
been determined by policy of the states concerned. 
In ancient times it was usually held that in time of 
war, when a state was near enough to a combatant 
to feel the effects of the war, that state would be 
on one or the other side in the struggle. As bel- 
ligerents resorted to maritime warfare contacts 
with non-belligerents became common and the risk 
of unduly offending a non-belligerent became a 
matter of serious significance, while the risk which 
the non-belligerent might run in offending the bel- 
ligerent might be immediately apparent. Mari- 
time commerce in war time introduced matters of 
policy often influencing both belligerents to avoid 
irritating a state having large resources or easily 
able to make powerful alliances. 

Some of the concepts of war became more clearly 
defined under Gentilis (1552-1608) and Grotius 
(1583-1645). Bynkershoek (1673-1743) in writ- 
ing upon war had a chapter on "How War Affects 
Neutrals. " (Quaestionum Juris Publici, Lib. I, 
c. ix.) At the beginning of this chapter he says 
"Non hostes appelo, qui neutrarum, partium sunt, 
nee ex f oedere his illisve quicquam debent ; si quid 
debeant, Foederati sunt, non simpliciter amici, ,r 
which may be read, "I call those neutrals who are 
of neither party, and do not by treaty owe anything 
to the one or the other ; if they owe anything they 
are allied, not simply friends.' ' The word neu- 
trality had been used hundreds of years before the 
eighteenth century and references in treaties and 
elsewhere to the law of neutrality had been fre- 
quent. Bynkershoek in 1737, however, contributed 



1 g PROTECTION BY VESSELS OF WAR 

much toward clarifying the concepts of neutrality, 
contraband, free ships, free goods, etc. Of course, 
states having a large export trade were averse to 
interference with commerce, and such a state, if 
neutral, would be in a position to be of service to 
one or both belligerents as a source of supply. The 
law of maritime neutrality was also developing 
concurrently with the law applied in admiralty and 
prize courts, some early evidences of which were 
seen in the fourteenth century. The printed re- 
ports of the decision of Lord Stowell from the end 
of the eighteenth century gave great impetus to 
the study of and respect for prize law. 

The gradual substitution of a professional navy 
for the irregular methods of maritime warfare in- 
troduced direct responsible state control and made 
the demand for observance of law more tenable. 

Common attitude. — Identical provisions are in- 
cluded in many bilateral treaties relating to war 
and neutrality, particularly since the early eight- 
eenth century. The provisions in regard to visit 
and search, etc., of the first treaty of the United 
States with France, February 6, 1776, were re- 
peated in many later treaties, indicating a common 
attitude upon this subject. Other subjects have 
been similarly treated. This does not imply, how- 
ever, that such bilateral treaties become generally 
binding but only that each state is bound to act in 
the manner agreed upon in its relations to the other 
party to the specific treaty. 

The fact that identic provisions were common to 
many bilateral treaties tended to give such pro- 
visions the weight of law T in international courts. 
The many identic lists of contraband during the 
nineteenth century gave support to the idea cur- 



AMERICAN SOLIDARITY, 1914 19 

rent at the Hague Peace Conferences that a multi- 
lateral agreement could be reached upon the ar- 
ticles to be included in the category of contraband. 
The attempt to obtain general assent to a list as 
enumerated in the Declaration of London, 1909, 
was not successful in the early days of the World 
War. 

Attempts were, however, made to agree upon com- 
mon courses or principles of action upon topics or 
in regions more or less extended, as in the Hague 
Peace Conventions of 1899 and 1907, and in the 
rules of neutrality of Denmark, Norway, and 
Sweden in 1912. 

American solidarity, 1914. — During the World 
War, while the United States was neutral, there 
were many proposals looking to agreements by 
American states upon common action to protect 
neutral rights or to extend neutral protection. 
Propositions for the defining of areas about Ameri- 
can coasts from which belligerent vessels of war 
should be excluded or within which they could ex- 
ercise no rights as regards neutral commerce were 
common. In a lengthy memorandum from the 
Peruvian Minister of Foreign Affairs to the De- 
partment of State, November 10, 1914, the prob- 
lems are set forth. The concluding part is as 
follows : 

"In the present European war, which has unfortunately 
already been extended to Asia, it is not admissible that 
America, and especially South America, should also become 
a battlefield. The American countries are not bound up 
with the European nations either politically or by reason of 
their interests. The hospitality which they systematically 
accord to everything from abroad which may contribute to 
their advancement and development can not be extended to 
the point of permitting the coasts of the American Continent 



20 PROTECTION BY VESSELS OF WAR 

to be used for the maintenance of a permanent system of 
persecution of merchant vessels and for an intermittent and 
sterile struggle which benefits no one and injures all. 

"For this reason the Peruvian Government believes that 
the time has come for making felt the joint action of all the 
American Republics to guarantee the inviolability of their 
trade routes by freeing them throughout their extent from 
the effects of the hostilities of the belligerent naval forces. 
An agreement to this effect, asserting that America will not 
permit its commerce within the maritime areas correspond- 
ing to the continent (which area may be considered marked 
by a line equidistant from the other continents on both the 
Pacific and the Atlantic sides) to be subject to the contingen- 
cies of the present European war, would afford a sufficient 
guarantee to mitigate at least in part the consequences of the 
crisis which has already begun to be felt very acutely, and it 
would enforce respect for the interests affected, such respect 
not seeming thus far to have entered the minds of the bel- 
ligerent powers. 

"It is permissible to suppose that such an attitude would 
not be regarded unfavorably by these powers themselves,, 
since it would benefit them likewise, by virtue of the guar- 
antees which would be granted to their merchant vessels, be- 
sides relieving them of the obligation of detaching squadrons 
at such a distance to protect the vessels of their nationality 
or to pursue those under the enemy's flag." (Foreign Rela- 
tions, U. S., 1914, Supplement, p. 443.) 

Other American states made somewhat similar 
propositions and on December 8, 1914, the Govern- 
ing Board of the Pan American Union passed a 
resolution in which it declared : 

"1. That the magnitude of the present European war pre- 
sents new problems of international law, the solution of 
which is of equal interest to the entire world. 

"2. That [in] the form in which the operations of the 
belligerents are developing they redound to the injury of 
the neutrals. 

"3. That the principal cause for this result is that the 
respective rights of the belligerents and of the neutrals are 



PROPOSALS, 1914 21 

not clearly defined, notwithstanding that such definition is 
demanded both by general convenience as by the spirit of 
justice which doubtless animates the belligerents with 
respect to the interests of the neutrals. 

"4. That considerations of every character call for a 
definition of such rights as promptly as possible upon the 
principle that liberty of commerce should not be restricted 
beyond the point indispensable for military operations. 

"On these grounds the Governing Board of the Pan 
American Union resolves: 

"1. A special commission of the same is hereby appointed, 
to consist of nine members, of which the Secretary of State 
of the United States shall form part, acting as chairman 
thereof, ex officio. 

"2. This commission shall study the problems presented 
by the present European war and shall submit to the Gov- 
erning Board the suggestions it may deem of common in- 
terest. In the study of questions of a technical character, 
this commission wijl consult the board of jurists. Each 
government may submit to the committee such plans or sug- 
gested resolutions as may be deemed convenient, on the 
different subjects that circumstances suggest." (Ibid, 
p. 444.) 

Venezuela proposed a congress of neutrals to 
define " neutral rights and duties in the light of the 
new conditions introduced by modern war", and 
that revised rules should be " embodied in inter- 
national law" as a " pledge of peace for the 
future." To this end Venezuela also proposed a 
league of neutrals to bring a neutral code into 
operation. 

Proposals for the neutralization of American 
waters were made by many states. The Scandi- 
navian states had at Malmo on December 20, 1914, 
assumed an obligation to confer in case of difficul- 
ties in maintaining neutral rights, and intimated 
in late 1914 that the cooperation of the United 
States would be viewed with satisfaction. Italy 



22 PROTECTION BY VESSELS OF WAR 

also showed a desire that its action should be " along 
parallel lines with that of the United States." 

Begional understandings. — The Covenant of the 
League of Nations, for which President Wilson was 
a main protagonist, recognized in article 21 the de- 
sirability of maintaining " regional understandings 
like the Monroe doctrine. ' ' This doctrine was not 
an international agreement, but a unilateral pro- 
nouncement of one powerful state in regard to its 
policy in a specified area. Other regional under- 
standings have been proposed for specified areas, 
as the "open door in China," etc., which have later 
been embodied in international agreements as were 
the understanding in regard to China in the "Nine 
Power Treaty" of the Washington Conference, 
1922, which provided for "full and frank communi- 
cation between the Contracting Powers concerned" 
when the carrying out of the stipulations of the 
treaty seemed to be involved. 

The events since 1922 have seemed to warrant 
the "full and frank communication," but this has 
not taken place in any effective manner. 

American solidarity, 1917. — The attempts to 
bring about a common attitude on neutrality prior 
to 1917 had met with only moderate approval. 
After the United States entered the war there was 
some support for a conference of neutral American 
states, but soon this support became so limited that 
the proposed meeting was given up and a sentiment 
in favor of the Peruvian proposition for a "con- 
ference doctrine of solidarity with the United 
States" became general. American states soon 
broke off relations with Germany, and Brazil de- 
clared war on October 26, 1917. Other states gave 
special privileges. Costa Rica, El Salvador, and 



AMERICAN SOLIDARITY, 1917 23 

some other states placed their ports at the disposal 
of the United States. 

For many years regional agreements have been 
common and in one sense any treaty may have a 
regional significance. Many early treaties applied 
to limited areas. Such treaties as those relating to 
the balance of power or concert of powers were usu- 
ally regional in application. It could scarcely be 
expected that states having a common type of civili- 
zation and interest would not unite for common 
ends. Alliances of varying nature were the charac- 
teristic of a long period of European diplomacy. 
As competition among states increased, offensive 
and defensive alliances followed. These were some- 
times openly entered into and sometimes secret. 
It was hoped that at the end of the World War 
there would be a change in attitude of states and 
that the world should be made safe "as against 
force and selfish aggression." President Wilson 
in his address to Congress, January 8, 1918, pro- 
posed as the first of his fourteen points in a "pro- 
gramme of the world's peace": 

"I. Open covenants of peace, openly arrived at, after 
which there shall be no private international understandings 
of any kind hut diplomacy shall proceed always frankly 
and in the public view." (Foreign Relations, U. S., 1918 r 
Sup. 1, I, 15.) 

In this address President Wilson also said : 

"For such arrangements and covenants we are willing to 
fight and to continue to fight until they are achieved; but 
only because we wish the right to prevail and desire a just 
and stable peace such as can be secured only by removing 
the chief provocations to war, which this programme does 
remove." (Ibid., p. 16.) 



24 PROTECTION BY VESSELS OF WAR 

As to how far the Treaty of Versailles embodied 
the "fourteen points" and achieved the aims of his 
programme is a matter of difference of opinion. 

Pan American treaties, 1823-1936. — To some de- 
gree there has been a feeling of solidarity among 
the states of the American continent since the early 
nineteenth century. The Congress of Panama 
called under the influence of Bolivar in 1826 con- 
templated a type of league of states. The idea was 
kept before American states by other American con- 
ferences as at Lima (1847), at Santiago (1856), and 
at Lima (1864). At the conference of 1864 a some- 
what elaborate scheme for a league was presented. 
The Monroe Doctrine of the United States, from 
1823, gave a sense of security to states in advocating 
a united policy. Even in the Congress of Panama, 
1826, some of the later principles of conciliation and 
arbitration were advocated. The movement for 
strengthening common bonds by the creation of a 
Pan American Union developed rapidly from 1889 
and meetings of representatives of the American 
states became frequent. Each conference made con- 
tributions by discussing advanced projects for in- 
ternational peace and cooperation. The tentative 
idea of a Pan American Union dating from 1889 
was further elaborated at the Fourth Conference at 
Buenos Aires in 1910. 

The Sixth International Conference of Ameri- 
can States, Habana, 1928, was considered of such 
importance that the President of the United States 
visited Habana and made an address at the open- 
ing session emphasizing the need of "continental 
responsibility" and "international cooperation. " 
Delegations from each of the American republics 



HABANA CONVENTIONS, 1928 25 

were in attendance at this Habana Conference, 
thus making its acts of significance for all the 
American states. The scope of the Conference in- 
volved the signing of eleven conventions, sixty-two 
resolutions, seven motions and four agreements. 

Subsequent conferences at Montevideo and 
Buenos Aires elaborated the work of the Habana 
Conference, and introduced new topics upon which 
action has been taken. 

As many of the conventions signed at these con- 
ferences have subsequently been ratified, there is a 
considerable body of law common to the American 
states, relating to the time of peace, war, and neu- 
trality. These conventions, binding upon Ameri- 
can states, are not always in exact accord with the 
accepted international obligations as understood 
among non- American states. 

The Conference at Buenos Aires, 1936, was 
specifically called the Inter- American Conference 
for the Maintenance of Peace and had as a back- 
ground the recent war between Bolivia and Para- 
guay. 

Habana Convention, 1928. — Of the ten conven- 
tions signed at the Sixth International American 
Conference, Habana, January 16-February 20, 
1928, the Convention on Maritime Neutrality (1935 
Naval War College, International Law Situations, 
p. 115) contains provisions applicable in such a 
war as that between X and T. Many of these are 
similar to those of Hague Convention XIII, 1907, 
on Neutral Rights and Duties in Maritime War. 
The preamble of the Habana Convention on Mari- 
time Neutrality implies that there will be to some 

93707—39 3 



25 PROTECTION BY VESSELS OF WAR 

degree concerted action by the Governments of the 
Republics represented, which — 

"Desiring that, in case war breaks out between two or 
more states the other states may, in the service of peace, 
offer their good offices or mediation to bring the conflict to 
an end, without such an action being considered as an 
unfriendly act; 

"Convinced that, in case this aim cannot be attained, 
neutral states have equal interest in having their rights 
respected by the belligerents ; 

"Considering that neutrality is the juridical situation of 
states which do not take part in the hostilities, and that it 
creates rights and imposes obligations of impartiality, which 
should be regulated; 

"Recognizing that international solidarity requires that 
the liberty of commerce should be always respected, avoid- 
ing as far as possible unnecessary burdens for the neutrals; 

"It being convenient, that as long as this object is not 
reached, to reduce those burdens as much as possible ; and 

"In the hope that it will be possible to regulate the matter 
sc that all interests concerned may have every desired 
guaranty ; 

"Have resolved to formulate a convention to that effect 
and have appointed the following plenipotentiaries:" 
(Ibid.) 

Limitation on Habana Convention, 1928. — The 
title of the Habana Convention on Maritime Neu- 
trality, 1928, implied that the Convention applies 
to a definite status. This status is set forth in the 
preamble in the words, " neutrality is the jurid- 
ical situation of states which do not take part in 
hostilities, and * * * it creates rights and im- 
poses obligations of impartiality, which should be 
regulated." The Convention is divided into four 
sections : " Section I. Freedom of commerce in time 
of war; Section II. Duties and rights of belliger- 
ents; Section III. Rights and duties of neutrals; 
Section IV. Fulfilment and observance of laws 



MONTEVIDEO TREATIES, 1933 27 

of neutrality. ' ' The text of this Convention refers 
to previous laws and accepted rules and follows 
some of the rules of the earlier Hague conventions. 
Indeed, Article 28 specifically states that — 

''The present convention does not affect obligations pre- 
viously undertaken by the contracting parties through inter- 
national agreements." 

In signing this Convention, the delegations of 
the United States and of Cuba made reservation 
on the treatment of armed merchantmen, and Chile 
on the transit of arms, munitions, etc., to a "Medi- 
terranean country.' ' 

It was clearly shown that the Habana Confer- 
ence of 1928 appreciated the difference between 
war and civil strife, as a later convention was con- 
cluded on the "Rights and Duties of States in the 
Event of Civil Strife." At this time there was 
therefore a definite concept of neutrality in the 
sense of international law. 

Treaties of 1933. — Among the treaties of the 
Seventh International Conference of American 
States at Montevideo, 1933, was one on "The 
Rights and Duties of States," which again affirms 
that "the present convention shall not affect obli- 
gations previously entered into by the high con- 
tracting parties by virtue of international agree- 
ments." (Article 12.) This provision reaffirms 
many conventional agreements upon neutrality. 

The Anti-War Treaty on Non-Aggression and 
Conciliation 9 signed at Rio de Janeiro, October 10, 
1933, aimed to end wars of aggression and for terri- 
torial acquisition. This treaty refers to war and 
neutrality. 

• Post, p. 152. 



28 PROTECTION BY VESSELS OF WAR 

Conventions, Buenos Aires, 1936. — The Conven- 
tion for the Maintenance, Preservation, and Rees- 
tablishment of Peace, 10 December 23, 1936, Article 
II, refers to "the event of war or a virtual state of 
war between American states" and also refers to 
' c the standards of international morality. ' ' An ad- 
ditional protocol declares " inadmissible the inter- 
vention of any one of them, directly or indirectly, 
and for whatever reason, in the internal or exter- 
nal affairs of any other of the parties," but 
"mutual consultation" may follow with view to 
conciliation, arbitration, or judicial settlement. 

Passengers bound for belligerent ports. — The 
treatment of persons having a belligerent destina- 
tion has long been an important question. Pro- 
visions in regard to such persons appeared in 
treaties in the seventeenth and eighteenth century. 
The Trent case, November 8, 1861, when an Ameri- 
can vessel of war required the surrender of Mason 
and Slidell by the British mail steamer, empha- 
sized the need of definite rules. It was maintained 
that the persons should not be removed, but the 
vessel, in case of probable carriage of enemy mili- 
tary persons, should be brought into port. 

The consideration of the matter of carriage of 
enemy persons led to the formulation of Article 
47 of the unratified Declaration of London in 1909 : 

"Any individual embodied in the armed force of the 
enemy, and who is found on board a neutral merchant ves- 
sel, may be made a prisoner of war, even though there be 
no ground for the capture of the vessel." (1909 Naval War 
College, International Law Topics, p. 111.) 

10 Post, p. 160. 



CARRIAGE OF ENEMY PERSONS 29 

The comment on this article explains the point 
of view in 1909 : 

"Individuals embodied in the armed military or naval 
forces of a belligerent may be on board a neutral merchant 
vessel which is visited and searched. If the vessel is subject 
to condemnation, the cruiser will capture her and take her to 
one of her own ports with the persons on board. Clearly the 
soldiers or sailors of the enemy State will not be set free, 
but will be considered as prisoners of war. It may happen 
that the case will not be one for the capture of the ship — 
for instance, because the master does not know the status 
of an individual who had the appearance of an ordinary pas- 
senger. Must the soldier or soldiers on board the vessel be 
set free ? That does not appear admissible. The belligerent 
cruiser cannot be compelled to set free active enemies who 
are physically in her power and are more dangerous than 
this or that contraband article ; naturally she must act with 
great discretion, and it is at her own responsibility that she 
requires the surrender of these individuals, but the right 
to do so is hers; it has thus been thought necessary to ex- 
plain the point." {Ibid.) 

In Article 45 of the Declaration of London, there 
is reference to "the transport of individual pas- 
sengers who are embodied in the armed force of 
the enemy" or " persons who with the knowledge 
of the owner" during the voyage, lend direct 
assistance to the operations of the enemy." 

There is no doubt as to the liability of the vessel 
to be seized on the ground of unneutral service in 
case of such transport, but the removal of such 
persons from the neutral vessel had usually been 
opposed till the twentieth century. The interfer- 
ence with neutral shipping involved in bringing in 
a large neutral passenger liner, because a single 
soldier of an enemy was on board, came to-be re- 
garded as unnecessary and it was conceded that 
the passenger might be turned over to the visiting 






30 PROTECTION BY VESSELS OF WAR 

vessel of war. The liability would be assumed by 
the belligerent. Some states have taken positions 
involving an approval of action which still would 
be regarded as extreme, as in the Italian regula- 
tions of 1927, which provide: 

"Persons belonging to or intending to join the enemy's 
armed forces found on board a neutral vessel may be made 
prisoners of war, even though the ship be not subject to cap- 
ture." (Norme de Diritto Marittimo di Guerra, Roma, 1927. 
Article 78.) 

The Instructions for the Navy of the United 
States, June 1917, stated that the persons "must be 
actually embodied in the military service of the 
enemy. Reservists or other persons subject to mili- 
tary duty but not formally incorporated in military 
service are not included." 

The status and treatment of enemy persons on 
neutral vessels received somewhat full treatment at 
the Naval War College in 1928 (1928 Naval War 
College, International Law Situations, pp. 73-108). 
The discussion in 1928 led to the statement that, 
"while neutrals may after arriving in a belligerent 
state, enroll in the military service, this does not 
subject them to interference prior to entering 
enemy service." It was also concluded that — 

"the present rules in regard to capture do not confer a right 
to remove from a neutral merchant vessel, when on a regular 
voyage, passengers of enemy nationality on the ground that 
from their age or capacity they may be called for military 

service." 

There would not be a general obligation resting 
upon all neutral vessels of war to interfere in cases 
in which neutral vessels lawfully flying other flags 
than that of the vessel of war might be concerned. 



CARRIAGE OF GOODS 31 

Habana Convention, 1928, on transit. — The pas- 
sage of goods across American states is as among 
the parties to the Habana 1928 Convention on Mari- 
time Neutrality regulated by Article 22, which spe- 
cifically refers to inland states : 

"Neutral states are not obligated to prevent the export or 
transit at the expense of any one of the belligerents of arms, 
munitions and in general of anything which may be useful 
to their military forces. 

"Transit shall be permitted when, in the event of a war 
be f ween two American nations, one of the belligerents is a 
mediterranean country, having no other means of supplying 
itself, provided the vital interests of the country through 
which transit is requested do not suffer by the granting 
thereof." (1935 Naval War College, International Law 
Situations, p. 120.) 

In the first paragraph the neutral state is "not 
obligated to prevent the export or transit." In the 
second paragraph, "transit shall be permitted." 

Cargoes contraband. — In December 1915 certain 
boxes of Valentia oranges were seized on Norwe- 
gian steamships, Nome, Grove, and Hardanger, 
on a voyage from Valentia, Spain, to Rotterdam, 
Holland. The fruit was to be sold at auction in 
Rotterdam. The Judicial Committee of the Privy 
Council on appeal from the British Prize Court 
stated : 

"At the date of the seizure the oranges had been declared 
conditional contraband. * * * Whether goods in any par- 
ticular instance are contraband, by application of the doc- 
trine of continuous voyage, is a question of fact. Under the 
terms of the Order in Council the appellants must discharge 
the burden of proving that the destination, if the voyage had 
not been interrupted, would have been innocent. When an 
exporter ships goods under such conditions that he does not 
retain control of their disposal after arrival at the port of 
delivery, and the control but for their interception and seiz- 
ure would have passed into the hands of some other persons, 



32 PROTECTION BY VESSELS OF WAR 

who had the intention either to sell them to an enemy gov- 
ernment or to send them to an enemy base of supply, then 
the doctrine of continuous voyage becomes applicable, and 
the goods on capture are liable to condemnation as contra- 
band. The case for the respondent is that the cases of 
oranges on arrival at Rotterdam would have passed under 
the control of Lutten and Sohn, of Hamburg." (1 A. C. 
[1921] 765.) 

The decision of the Prize Court condemning the 
oranges as conditional contraband destined for an 
enemy base was affirmed. Whether all the opinion 
would have been affirmed had it not been for the 
domestic Orders-in-Council is open to question, but 
oranges bound for an enemy base of supply would 
be conditional contraband. Similar decisions were 
given as to conditional contraband in the German 
Court (Medea, 1 Entscheidungen des Oberprisen- 
gerichts 131) and in the French court (Athenes, 
Fauchille, Jurisprudence Francaise en Matiere de 
Prises, p. 428). 

The Hakan. — The Hakan, a Swedish merchant 
vessel, was captured by a British vessel of war April 
4, 1916, with a cargo of salted herrings. The Hakan 
was bound to Lubeck in Germany. The British 
Prize court condemned the ship and cargo. The 
Judicial Committee of the Privy Council heard the 
case on appeal. 

"In their lordships' opinion, goods which are conditional 
contraband can be properly condemned whenever the court 
is of opinion, under all the circumstances brought to its 
knowledge, that they were probably intended to be applied 
for warlike purposes, the Jong Margaret ha. * * * 

"In the present case Lubeck, the port of destination of the 
goods, is undoubtedly a port used largely for the importa- 
tion into Germany of goods from Norway and Sweden ; but 
it does not appear whether it is used exclusively or at all as 
a base of naval or military equipment. On the other hand, 



CONTRABAND DOCTRINE EXTENDED 33 

it is quite certain that the persons to whom the goods were 
consigned at Lubeck were bound forthwith to hand them 
over to the Central Purchasing Co., of Berlin, a company 
appointed by the German Government to act under the 
direction of the imperial chancellor for purposes connected 
with the control of the food supplies rendered necessary by 
the war. The proper inference seems to be that the goods in 
question are in effect goods requisitioned by the Government 
for the purposes of the war. It may be quite true that their 
ultimate application, had they escaped capture, would have 
been to feed civilians, and not the naval or military forces of 
Germany ; but the general scarcity of food in Germany had 
made the victualing of the civil population a war problem. 
Even if the military or naval forces of Germany are never 
supplied with salted herrings, their rations of bread or meat 
may well be increased by reason of the possibility of supply- 
ing salted herrings to the civil population. Under these cir- 
cumstances, the inference is almost irresistible that the goods 
were intended to be applied for warlike purposes, and, this 
being so, their lordships are of opinion that the goods were 
rightly condemned." ([1918] A. C. 148; 1922 Naval War 
College, International Law Decisions, p. 164.) 

There is here introduced the idea of contraband 
by substitution, which has often been advanced in 
recent wars. 

The ship itself was also condemned on the ground 
that authorities held that " knowledge of the char- 
acter of the goods on the part of the owner of the 
ship is sufficient to justify condemnation of the 
ship — at any rate, where the goods in question con- 
stitute a substantial part of the cargo.' ' (Ibid.) 

Reservations on contraband, 1936. — In signing 
the Buenos Aires, 1936, Convention to coordinate, 
extend, and assure the fulfillment of the existing 
treaties between American states, the Argentine 
delegation made the following reservation : 

"In no case, under Article VI, can foodstuffs or raw ma- 
terials destined for the civil populations of belligerent coun- 



34 PROTECTION BY VESSELS OF WAR 

tries be considered as contraband of war, nor shall there 
exist any duty to prohibit credits for the acquisition of said 
foodstuffs or raw materials which have the destination in- 
dicated. 

"With reference to the embargo on arms, each Nation may 
reserve freedom of action in the face of a war of aggression." 
(Pan American Union, Congress and Conference Series, No. 
22, p. 40; post p. 168.) 

Paraguay made a like reservation. (Ibid.) 
Restriction of joint resolution of United States 
on export of arms, etc. — The joint resolution pro- 
viding for the prohibition of the export of arms, 
ammunition, and implements of war to belligerents, 
etc., adopted by the Congress of the United States, 
May 1, 1937, contained in section 4a a restriction 
on its application. This section is as follows : 

"Sec. 4. This Act shall not apply to an American republic 
or republics engaged in war against a non-American state or 
states, provided the American republic is not cooperating 
with a non-American state or states in such war." 

It is not the intent of the Government of the 
United States to apply the provisions of this joint 
resolution in wars in which an American republic 
or republics may be engaged against a non- Ameri- 
can state or states, provided the American state is 
not " cooperating" on the non- American side. The 
joint resolution would not specially apply when the 
war is one wholly between non- American states 
even though an American republic should become an 
ally of one of the parties. 

Prior treaties. — The recent multipartite treaties 
among American states have usually contained or 
implied a stipulation to the following effect: 

"The present convention does not affect obligations previ- 
ously undertaken by the contracting parties through inter- 
national agreements." 



USE OF TERRITORIAL WATERS 35 

This form appears in the conventions of 1928, 
1933, and 1936. Some articles make specific ref- 
erence to obligations of American states as mem- 
bers of the League of Nations. Modification of 
obligations previously existing may in any given 
instance be very limited as the provisions of a 
prior treaty would prevail and the later treaty 
would merely impose additional obligations as 
among the ratifying parties. 

Resume. — A belligerent state has in general the 
right to regulate the use of its territorial waters. 
The right of innocent passage may be claimed by 
neutral merchant vessels. There may be and often 
is in time of war difference of opinion as to what is 
meant by the term " innocent passage." 

In straits which are the sole waterway between 
high seas, if proclaimed war zones, defense areas 
or similarly designated, the right of innocent pas- 
sage may not be prohibited even though such 
passage necessarily involves entering territorial 
waters. 

If a territorial strait, proclaimed a war zone, is 
not the sole waterway between two seas though it 
is the more convenient and customary route, the 
passage of the strait may be restricted by reason- 
able military regulations, and passage may even 
be prohibited. 

Cases involving differences of opinion between 
commanders of naval vessels of belligerents and 
neutrals in regard to neutral rights of merchant 
vessels do not usually demand the immediate re- 
sort to force on the part of the neutral. If any 
injury to the neutral merchant vessel is not reme- 
died by the belligerent courts, diplomatic means 
are available. In such cases, however, the facts so 



30 PROTECTION BY VESSELS OF WAR 

far as ascertainable should be reported to the 
proper authorities and if neutral rights are clearly 
violated, formal protest may be made or if in doubt 
reasons for the action may be requested. 

An innocent merchant vessel in ballast within a 
war zone, but outside territorial waters would not 
ordinarily be liable to seizure solely on the ground 
of its presence there but the presumption would be 
that its seizure would not be justified. 

If a neutral merchant vessel with cargo has been 
seized and if the belligerent has placed a prize crew 
on board, from that time a merchant vessel is under 
the military control of the belligerent state and any 
protest in regard to further action should be by the 
political authorities of the neutral state concerned, 
unless the naval commander has special instruc- 
tions. This is particularly true, as in recent years 
the list of articles liable as contraband has varied, 
the effect of ultimate destination in determining 
the treatment of goods has not been uniform, and 
treaty provisions and national legislation have in- 
troduced exceptional practices. 

In recent wars belligerents have usually extended 
the list of contraband as the maintenance of block- 
ade has become increasingly difficult. During the 
World War the rule of the unratified Declaration 
of London in regard to the proportion of contra- 
band in the cargo rendering the vessel liable as well 
as the cargo was usually followed in the prize 
courts. 

Recently when states have without declaring war 
resorted to the use of force against each other, 
some states have prohibited the export of certain 
articles to the states engaged in the conflict. That 
a state engaged in a declared war should consider 



SOLUTION 37 

such prohibited exports properly within the cate- 
gory of contraband when bound to an enemy would 
seem reasonable even from the point of view of the 
neutrals concerned. 

Certain states have made it unlawful for their 
nationals to travel on vessels of states engaged in 
hostilities. A state may also lawfully forbid its 
nationals to travel within the war area during hos- 
tilities or may notify them that such travel is at 
their own risk. The nationals of any state, when 
traveling on a vessel on the high seas, are under 
the jurisdiction of the state whose flag the vessel 
lawfully flies. In treatment of neutral nationals 
on the high seas, belligerents are under obligations 
to have due regard for their safety and not to place 
them under restraint unless they are engaged in 
aiding the enemy or embodied in the service of the 
enemy. 

SOLUTION 

(a) (1) The commander of the Bosu should raise 
question with the commander of the Yosu as to 
whether the Bami has not been illegally seized on 
high seas and request the release of the Bami. 

(2) The commander of the Bosu should report 
to the Navy Department his action. 

(&) (1) As the Zosu has placed a prize crew on 
the Lami and is sending the Lami in for adjudica- 
tion, the commander of the Losu may take no 
further action other than to inquire reasons for 
capture. 

(2) The commander of the Losu should report 
the circumstances to Navy Department. 

(c) As oranges may legally be declared contra- 
band and as the entire cargo of the Cemi may be 



38 PROTECTION BY VESSELS OF WAR 

liable to condemnation, the capture of the Cemi 
by the Xalu is lawful, and the commander of the 
Cosa may take no further action other than to re- 
port the facts. 

(d) (1) The passengers on the Nami being 
under the jurisdiction of state N, no third state 
may take action in regard to their safe removal 
in time of war by a vessel of war of state Z. This 
becomes primarily a matter of concern between 
states N and Z. . 

(2) The commanders of the Losu and of the Dosu 
may request reasons for the action of the Zosu and 
report the facts to their Navy Departments for ap- 
propriate action. The subsequent treatment of 
the nationals of D, L, and M may become a matter 
for action of those states. 



Situation II 

NAVAL PROTECTION DURING STRAINED 

RELATIONS 

The relations of states X and Y, non- American 
states, are strained. Neither state has declared 
war though the military and naval forces have 
within a month exchanged shots. A law identical 
with the Joint Resolution of the United States ap- 
proved May 1, 1937, providing for restrictions on 
export of arms, etc., is similarly operative in 
American states C, D, E, and F. Only states C 
and D under their laws proclaim a state of war to 
exist between X and Y. 

(a) State X seizes articles on board a merchant 
vessel of state D which were placed under an em- 
bargo by state C but not in the embargo list of 
any other state. 

(&) A vessel of war of state Y is just off, but 
more than three miles, from state D and inspects 
the cargo of a merchant vessel flying the flag of 
D and finds articles embargoed by state D. 

(c) State E has a defensive alliance with states 
X and F. State E maintains that the embargo law 
does not apply until proclaimed by E and F. 

(d) A merchant vessel of state M is passing 
through the territorial waters of state having 
on board articles enumerated under the prohibited 
list of C. A vessel of war of C brings the vessel 
to port, and the owners demand immediate release 

39 



40 NAVAL PROTECTION DURING STRAINED RELATIONS 

on the ground of illegal seizure while on innocent 
passage in the time of peace with goods not liable 
to seizure. 

How far are the acts of the several states and 
their contentions lawful? 

SOLUTION 

(a) As there is no war and as the law mentioned 
relating to the export of arms, etc., is national in 
its effect, the action of state X has no validity 
under that law even though states C and D have 
proclaimed that a state of war exists. 

(&) A vessel of war of state Y has the right to 
approach a merchant vessel suspected of piracy or 
other offense against the law of nations for purpose 
of identification, but the vessel of war of state X 
has no right to inspect or to take any action in 
regard to the articles in the cargo of a merchant 
vessel of state D and embargoed under domestic 
law. 

(c) The alliance between states E, F, and X 
would bind state E for defense and not before 
state X or P is at war with a third state. 

(d) The embargo legislation is purely domestic 
and a vessel of war of state C may not lawfully 
interfere with a merchant vessel of state M when 
on innocent passage through the territorial waters 
of state C. 

NOTES 

Strained relations. — Strained relations between 
tribes in early days and between groups of less 
developed peoples in some parts of the world have 
led to contests of different types. Some of these 
show parallels to contests between states in later 



USE OF FORCE 41 

days. Sometimes the differences were settled by 
a competition in the exchange of epithets or vitu- 
peration. Wars of words or of notes have been 
known in modern times. 

Efforts to bring about perpetual peace among 
states have been made from time to time for many 
years. Some of the plans devised for that purpose 
have received wide nominal support, but when 
brought to a crucial test have thus far been ineffec- 
tive. Even the World War, 1914r-18, having as one 
of its objectives, "war to end war," has not put an 
end to conflicts between states even though these 
may not reach the proportions of or may not be de- 
clared to be war. If a stage in international de- 
velopment should be reached when wars would be 
no more it can scarcely be hoped that there will be 
no friction between states when there are so many 
racial, economic, political, and other differences. 

In considering the very existence of states, there 
is an implication of differences which have led to 
their formation. Referring to these matters at the 
Naval War College in 1933 it was said : 

"Strained relations is a term which has been used to indi- 
cate an attitude of opposition of states to one another in 
any degree short of war. Such relations often lead to war 
but are not war and the existence of these relations does not 
bring into operation the law of war." (1933 Naval War 
College, International Law Situations, p. 75.) 

Use of force. — Even though the custom of formal 
declaration of war declined during the seventeenth, 
eighteenth, and nineteenth centuries, the use of 
force by one state against another was common. 
With the further development of professional 
armies and navies, the need of clearer rules in re- 
gard to war became evident. Such rules for the 

93707—39 4 



42 NAVAL PROTECTION DURING STRAINED RELATIONS 

conduct of war were gradually elaborated for war 
on land as in the Lieber Code during the Civil War 
in the United States which became the basis of 
other codes. 

The conduct of war on the sea as affecting states 
not parties to the war was the subject of attention 
by the British courts in the days of Lord Stowell 
and from the beginning of the nineteenth century. 

War had been defined as "that state in which a 
nation prosecutes its right by force.' ' There had 
been no adequate definition of the degree of force 
essential to constitute war and there was, as there 
still is, a wide difference of opinion as to what is a 
nation's "right," or what is a "just war." 

Battles had been fought against Mexican troops 
before the Congress of the United States passed the 
Act of May 13, 1846, which recognized a state of war 
as existing with Mexico. 

Courts might have to decide in the nineteen 
century whether war existed on a given day and a 
state might by a proclamation announce that war 
commenced on some date prior to the declaration. 
This is evident in such cases as that of the United 
States of America v. Petty and another in 1899. In 
this case, Mr. Justice Bingham said : 

"I will state why it is a fact that a state of war then 
existed. An act of hositility had been committed on April 22 
by American men-of-war against Spanish traders, or, at all 
events, against one Spanish trader, which act, in my opinion, 
was only consistent with the existence of a state of war. 
Further, on April 22 the American President issued a procla- 
mation in which he declared a general blockade of Cuba. A 
few days later the Congress passed a resolution authorizing 
a formal state of war, but, in so doing, recorded, what was 
undoubtedly the fact, that a state of war had existed from 
some days previously." (4 Commercial Cases [1899] 100.) 



STATE OF WAR 43 

There was also much uncertainty as to when the 
Russo-Japanese war began in 1904. It was de- 
cided that when the Japanese fleet sailed from 
Sasebo, February 6, 1904, at 7 A. M., "with the 
object of opening hostilities," there was a state of 
war and captures were legal. From the late nine- 
teenth century when fleets sailed under sealed or- 
ders for maneuvers or practice, there might be 
serious misunderstandings since foreign powers 
were free to determine the "object" of the move- 
ment of the fleet. 

When states were not under obligation to declare 
war, there was frequent resort to the use of force 
which was announced to be reprisals, pacific block- 
ade, or some other measure short of war. Either 
state might regard such an act as the commence- 
ment of war. Such a condition left third states 
uncertain as to whether war really existed or as to 
w 7 hen it actually began. This introduced many 
complications though some states maintained that 
the advantage of a possible surprise attack should 
not be renounced. Others argued that under mod- 
ern conditions there was little possibility of sur- 
prise in the commencement of war. 

Distinction between belligerent and protective 
action. — The situation arising in Russia in 1919 
became the subject of correspondence between the 
Commission to Negotiate Peace and the American 
Secretary of State. In replying to certain pro- 
posals, the acting Secretary of State said, on July 
18, 1919, "A blockade before a state of war exists 
is out of the question" (Foreign Relations, U. S., 
1919, "Russia," p. 153), and at this time it was 
generally accepted that war without a declaration 
would be contrary to the law. The distinction be- 



44 NAVAL PROTECTION DURING STRAINED RELATIONS 

tween belligerency and military operations was also 
discussed in the Commission, and a communication 
was, at the request of M. Clemenceau, transmitted 
to the President of the United States on July 27, 
1919: 

"British, French, Italian, Japanese members of the Coun- 
cil of Five, respectfully offer the following on the President's 
message relating to neutral trade in the Gulf of Finland. 
They do not desire to express any opinion upon the state- 
ment of international law laid down in the telegram. It may 
well be true that where there is no state of belligerency there 
can be no legal blockade ; but they would point out that the 
situation in Russia and in the Gulf of Finland is at the 
present moment such as hardly to permit rigid application 
of rules which in ordinary cases are quite uncontested. Lan- 
guage in which international law is expressed is fitted to 
describe the relations between the organized states on the one 
hand and unorganized chaos on the other hand. Russia 
during this period of transition is not a state but a collection 
of 'de facto' governments at war with each other and 
though it is quite true to say that the Allied and Associated 
Powers are not in a state of belligerency with Russia it is 
also true they are involved in military operations with one 
of these 'de facto' governments and that they are supplying 
arms and ammunition to the others." (Ibid., p. 154.) 

To this the President replied on August 2, 1919 : 

"The President is not unmindful of the serious situation 
which exists in relation to neutral trade in the Baltic with 
the Russian ports controlled by the Bolsheviks. He has 
given careful consideration to the arguments advanced in 
the message transmitted at the request of M. Clemenceau and 
is not unmindful of their force in support of the proposed 
interruption of commerce with the ports mentioned. How- 
ever, while he fully understands the reasons for employing 
war measures to prevent the importation of munitions and 
food supplies into the portion of Russia now in the hands 
of the Bolsheviks, he labors under the difficulty of being 
without constitutional right to prosecute an act of war 
such as a blockade affecting neutrals unless there has been a 



NATIONAL NEUTRALITY LAWS 45 

declaration of war by the Congress of the United States 
against the nation so blockaded. 

"The landing of troops at Archangel and Murmansk was 
done to protect the property and supplies of the American 
and Allied Governments until they could be removed. The 
sending of troops to Siberia was to keep open the railway 
for the protection of Americans engaged in its operation and 
to make safe from possible German and Austrian attack the 
retiring Czechoslovaks. The furnishing of supplies to the 
Kussians in Siberia, while indicating a sympathy with the 
efforts to restore order and safety of life and property, can- 
not be construed as a belligerent act." {Ibid., p. 155.) 

Purpose of Act of May 1, 1937. — In reply to a 
question of November 25, 1937, as to the use of the 
Act of May 1, 1937, 1 as an instrument of policy, the 
Secretary of State said : 

"With regard to the eighth question, the entering into 
force of the restrictive provisions of the Neutrality Act of 
May 1, 1937, is left to and is dependent upon decision of the 
President by a finding that 'there exists a state of war.' 
The policy of the Department of State in reference to this 
Act is dependent upon that decision. The Department of 
State keeps constantly in mind the fact that the principal 
purpose of the Act is to keep the United States out of war." 
(International Conciliation, No. 336, p. 36; Department of 
State, Press Keleases, XVII, No. 428, p. 416.) 

National and international neutrality laws. — It 
is desirable to point out again that " Domestic neu- 
trality laws do not necessarily have any effect upon 
the international law of neutrality either in limit- 
ing or extending its scope. ' ' (1936 Naval War Col- 
lege, International Law Situations, p. 98.) A 
domestic law prohibiting exportation of arms to 
a foreign state or states when these states have not 
declared war is wholly national and may be re- 
pealed or declared inoperative in whole or in part 

x Post, p. 171. 



46 NAVAL PROTECTION DURING STRAINED RELATIONS 

at any time by the state which enacted the law. 
Such a law does not confer upon any foreign state 
a right to treat the articles named in the prohibi- 
tion as contraband of war, or to treat the vessels 
transporting the articles as guilty of the carriage 
of contraband. Indeed as a domestic measure a 
state in the time of peace or even when relations 
are strained between foreign states may, in absence 
of treaty agreement, prohibit under penalty of 
domestic law the exportation of certain articles, ex- 
tend the list, or abolish the restrictions altogether 
from time to time as it may see fit. In time of law- 
ful war the list of articles liable to penalty may be 
determined by the belligerent and the belligerent 
may under international law capture the goods and 
apply the penalty. The government of the United 
States has often in time of unsettled conditions 
changed its policy in regard to the export of certain 
articles. Domestic laws which may have an effect 
even upon international agreements relating to 
shipment of arms may be enacted or repealed. 
This was evident in a communication of the Secre- 
tary of State Hughes to the Charge in Japan, 
March 19, 1921: 

"A joint resolution of Congress approved March 3, 1921, 
repealing certain sections of the Espionage Act of June 15, 
1917, has deprived this Government of any legal basis under 
which it can control shipments of arms and munitions to 
China as provided for in the joint declaration made on May 
5, 1919 by the diplomatic representatives of Great Britain, 
France, Italy, Spain, The Netherlands, Denmark, Belgium, 
Portugal, Brazil and Japan. This Government has not 
changed its policy in this regard however and is seeking 
from Congress legislation necessary to enable it to continue 
control over shipments of arms to China and in the mean- 
time will refuse to support any efforts on the part of Ameri- 



HOSTILITIES AND DECLARATION 47 

can citizens to ship or sell arms to China. You will bring 
the above to the attention of the Japanese Foreign Office for 
its confidential information and express this Government's 
hope that nothing will be done to change the present policy 
of the Powers in this matter." (Foreign Relations, U. S., 
1921, I, 552.) 

Further correspondence shows that so far as the 
United States was concerned, the whole matter of 
prohibition of shipment of arms was regarded as 
subject to domestic legislation and that interna- 
tional agreements in regard thereto would be cor- 
respondingly limited by domestic regulations. 

The Government of the United States in 1920 
without ratifying the Arms Traffic Convention and 
Protocol, September 10, 1919, announced that it 
adopted the spirit of this Convention "as a matter 
of policy, insofar as concerns government owned or 
controlled arms." (Foreign Relations, U. S., 1920, 
I, 207.) 

Hostilities without declaration. — An act of hos- 
tility by an armed force of a state without some 
form of previous public notification was in early 
times regarded as an act of perfidy and previous 
notification in the days of Rome was usually a for- 
mal ceremony. Without such ceremony the war 
might not be considered a just war. It was argued 
that if the object of the war might be obtained with- 
out the use of force, it was honorable that the state 
against which hostilities were to be aimed should 
have opportunity to afford satisfaction before force 
was used. The mediaeval conception of chivalry 
demanded this degree of fair dealing in a just war. 
Grotius in the early seventeenth century regarded 
formal declaration as the rule if war was to be 
recognized internationally, though there might be 



48 NAVAL PROTECTION DURING STRAINED RELATIONS 

a demand for satisfaction with conditional declara- 
tion. 

Prior declaration was less general from the late 
seventeenth century. Of about 150 wars during 
the two centuries from 1700 to 1900 few, not more 
than one in ten, seem to have been formally de- 
clared at all and some like the Spanish- American 
war of 1898 were declared after hostilities had 
begun. 

As the relations of state to state and of individual 
to individual change when war begins, it is of great 
importance to fix the time of the commencement of 
war. In the early days this was not difficult but 
during the eighteenth and nineteenth century this 
became uncertain or impossible. 

The formula which at first seemed simple was 
set up to the effect that "war begins with the first 
act of hostilities." This phrase was, however, not 
easy to interpret and sometimes was differently in- 
terpreted by courts of the same country at different 
periods ; consequently controversies arose upon the 
issue of the date of the beginning of the war. 

Prior declaration, — In the late nineteenth and 
early twentieth centuries, a sentiment had been 
growing in favor of requiring a declaration prior 
to the opening of war. The Institute of Interna- 
tional Law at the session at Ghent in 1906 favored 
such a regulation. 

It was pointed out that diplomatic negotiations 
settled most differences between states and that a 
requirement of a declaration before resorting to 
hostilities would often prevent hostilities, and if a 
reasoned declaration was required this would be a 
further deterrent, for states might be reluctant to 



DECLARATION OF WAR 49 

make public their motives for going to war. It was 
argued that a state should not go to war without an 
ample motive as war disturbed many established 
relations in the world. Third states should be noti- 
fied as these states were put under new obligations 
and these should not be imposed without due notice 
and good reason. Of course, it was fully under- 
stood that the published reason might not always 
be the true reason, but the honor of the state was 
involved or, as the French delegate at the Second 
Hague Conference, 1907, said, "the spirit of loyalty 
which nations owe to each other in their mutual re- 
lations, as well as the common interests of all 
states," should require previous and unequivocal 
notice. Any delay would afford more time for 
pacific settlement. 

Declaration of tvar. — As was shown at the 
Hague Peace Conference in 1907, there were many 
reasons for a declaration of war before commence- 
ment of hostilities. Many conventions and treaties 
since 1907 have rested on the presumption that 
declaration prior to hostilities will be made. For 
neutral states this is essential in order that they 
may by proclamation regulate the conduct of their 
nationals and determine the rights and obligations 
governing the state under the changed conditions. 
The use of the neutral ports as places of sojourn of 
vessels of war of the belligerents and in other re- 
spects must be regulated, the amount and char- 
acter of supplies or of repairs is to be determined 
and an entirely new legal status is in existence 
from the commencement of the war. Merchant 
vessels of neutrals outside of neutral jurisdiction 
are under obligation to submit to visit and search, 



50 NAVAL PROTECTION DURING STRAINED RELATIONS 

may be taken to a prize court and their cargo may 
be condemned in whole or in part or the vessel 
itself may be condemned. The movement of neu- 
tral vessels or persons may be restricted or for- 
bidden in certain areas. Even between the bel- 
ligerents the rights of persons and property as- 
sume new aspects. It is conceivable that these 
facts, together with a required prior declaration, 
may be a deterrent at times sufficient to prevent 
hostilities or reckless warlike undertakings. 

Hague Convention on declaration of war. — The 
discussion in 1907 upon the need for declaration 
prior to hostilities between states showed that it 
was realized that in cases of civil war such a decla- 
ration would not always be expected though it 
might in some conditions clarify relations. 

Hague Convention III relative to the Opening 
of Hostilities states: 

"The Contracting Powers considering that it is important, 
in order to ensure the maintenance of pacific relations, that 
hostilities should not commence without previous warning; 

"That it is equally important that the existence of a state 
of war should be notified without delay to neutral 
Powers; * * * 

"Article 1. The Contracting Powers recognize that hos- 
tilities between themselves must not commence without pre- 
vious and explicit warning, in the form either of a reasoned 
declaration of war or of an ultimatum with conditional 
declaration of war. 

"Article 2. The existence of a state of war must be 
notified to the neutral Powers without delay, and shall not 
take effect in regard to them until after the receipt of a 
notification, which may, however, be given by telegraph. 
Neutral Powers, nevertheless, cannot rely on the absence of 
notification if it is clearly established that they Avere in fact 
aware of the existence of a state of war." (36 Stat. 2259.) 



HAGUE CONFERENCE AND DECLARATION OF WAR 51 

In explaining Article 1, the report of the Com- 
mission entrusted with the topic said : 

"Two distinct cases are provided for. When a dispute 
occurs between two States, it will ordinarily lead to diplo- 
matic negotiations more or less lengthy, in which each 
party attempts to have its pretentions recognized, or at least 
to secure partial satisfaction. If an agreement is not 
reached, one of the Powers may set forth in an ultimatum 
the conditions which it requires and from which it declares 
it will not recede. At the same time it fixes an interval 
within which a reply may be made and declares that, in the 
absence of satisfactory answer, it will have recourse to 
armed force. In this case there is no surprise and no 
equivocation. The Power to which such an ultimatum is 
addressed can come to a decision with a full knowledge of 
the circumstances; it may give satisfaction to its adversary 
or it may fight. 

"Again, a dispute may arise suddenly, and a Power may 
desire to have recourse to arms without entering upon or 
prolonging diplomatic negotiations that it considers useless. 
It ought in that case to give a direct warning of its intention 
to its adversary, and this warning ought to be explicit. 

"Wh,en an intention to have recourse to armed force is 
stated conditionally in an ultimatum, a reason is expressed, 
since war is to be the consequence of a refusal to give the 
satisfaction demanded. This is, however, not necessarily 
the case when the intention to make war is made manifest 
directly and without a previous ultimatum. The proposal 
set out above requires that reasons be assigned in this case 
also. A Government ought not to employ so extreme a 
measure as a resort to arms without giving reasons. Every 
one, both in the countries about to become belligerents, and 
also in neutral countries, should know what the war is 
about in order to form a judgment on the conduct of the 
two adversaries. Of course this does not mean that we are 
to cherish the illusion that the real reasons for a war will 
always be given ; but the difficulty of definitely stating rea- 
sons, and the necessity of advancing reasons not well sub- 
stantiated or out of proportion to the gravity of war itself, 
will naturally arrest the attention of neutral Powers and 



52 NAVAL PROTECTION DURING STRAINED RELATIONS 

enlighten public opinion." (Proceedings of the Hague 
Peace Conferences, Translation, Carnegie Endowment of 
International Peace, I, 132.) 

This report of the Commission shows that the 
Conference was not so naive as to think that the 
reasons stated for declaring war would always cover 
all the reasons but that the obligation to give a rea- 
son might be to some degree a deterrent. 

Further, it may be said that a very effective and 
automatic sanction making declaration essential 
was the requirement that declaration be published 
to third states before these states were under the 
obligation of neutrals. There could be no contra- 
band, blockade, unneutral service, etc., till the dec- 
laration was made known. Third states would be 
under no obligation to limit the use of their ports 
for sojourn, the taking on of supplies, repairs, etc., 
or even the sale of vessels of war might lawfully be 
made prior to declaration of war. 

Embargo Act, 1807. — The conditions which led 
to the Embargo Act of December 21, 1807, may not 
recur even though Jefferson hoped it might furnish 
a valuable lesson for the future. This would be 
upon the presumption that conditions at the time 
of a subsequent struggle might closely resemble 
those at the beginning of the nineteenth century. 
Almost immediately the exports from the United 
States fell to a point where that trade was only 
about one-fifth that of the previous year and condi- 
tions in regard to illicit trade in many articles re- 
sembled those of the recent prohibition era in the 
United States. National politics were embittered, 
leaders previously popular were repudiated, and 
sectional differences were aggravated. The atti- 
tude of citizens of the United States toward the 



HOVERING, 1916 53 

belligerents became hostile and demands for pro- 
tection of American rights were frequently made. 
The embargo was repealed in May 20, 1809, leaving 
a spirit easily fanned into belligerency a few years 
later. Since this period of the early nineteenth 
century, there has been much difference of opinion 
upon the question as to whether relinquishing or 
defending neutral rights may be the course more 
likely to lead a powerful state into a war. 

British hovering, 1916. — Even in time of war 
the authorities of the United States have regarded 
the sojourn of belligerent vessels of war just out- 
side territorial waters as inconsistent with conduct 
of a friendly power and as causing unnecessary in- 
terference with American commerce. 

During the World War, early in October 1914, 
the Department of State called the attention of the 
British Ambassador to the fact that the nearness 
of British vessels of war to the entrance to the 
port of New York was causing "a very bad im- 
pression": 

"While, of course, the presence of these vessels does not 
constitute anything in the nature of a blockade by Great 
Britain, the effect is to interfere so with our commerce with 
her enemies as to infringe upon our commercial rights in 
appearance if not in fact. 

U I am writing you personally in regard to this matter, 
as I have already told you informally that the presence of 
the Suffolk had caused considerable concern and that its 
continuance might be construed into an unfriendly act, re- 
quiring official action. This latter possibility I hope can 
be avoided." (Foreign Eelations, U. S., 1914, Supp., 
p. 657.) 

Other incidents followed and further protests 
were made by the United States, and a letter of 



54 NAVAL PROTECTION DURING STRAINED RELATIONS 

March 20, 1916, from the British Ambassador to 
the Secretary of State said : 

"My Government has carefully studied the contents of 
your notes. They are impressed by the fact that no sugges- 
tion seems to be made in either of them that British cruisers 
enter at all within the territorial waters of the United 
States, and they note that, on the contrary, the effect of the 
notes is to take exception to proceedings of these vessels 
when navigating admittedly on the high seas. The objec- 
tion appears, indeed, to rest upon a claim to distinguish be- 
tween different parts of the high seas, a claim which causes 
surprise to His Majesty's Government, who are unaware 
of the existence of any rules or principles of international 
law which render belligerent operations which are legitimate 
in one part of the high seas, illegitimate in another. Under 
these circumstances it appears desirable that the position 
taken up by the United States Government should be more 
clearly defined. I am therefore instructed to have recourse 
to your courtesy in order to obtain fuller information as to 
the precise nature and grounds of the claims which are made 
by your Govermnent, as well as their extent, since my Gov- 
ernment are most anxious to recognise in the full any claims 
of this nature which are well founded in law, but are 
naturally unable to make a concession of what they regard 
as their belligerent rights. 

"The rights asserted in this respect by the United States 
Government in previous wars will no doubt be conceded by 
the United States Government as well founded when exer- 
cised by others. It will be in your recollection that my 
predecessor, Lord Lyons, complained that Rear Admiral 
Wilkes had ordered the vessels under his command to an- 
chor in such a position as to control the movements of ships 
desiring to enter or to depart from the port of Bermuda, 
and that he maintained a system of cruising in the neutral 
waters of Bermuda in excess of his rights as a belligerent. 
The charge was thus of a far more serious nature than that 
which the United States Government now make against His 
Majesty's ships. Admiral Wilkes in his reply, which was 
communicated officially by Mr. Secretary of State Seward 
to His Majesty's Legation on January 15, 1863, asserted that 



AMERICAN ATTITUDE, 1916 55 

his vessels 'but maintained a system of cruising outside of 
the neutral waters of Bermuda in and under our rights as a 
belligerent.' It is clear, therefore, that this officer of the 
United States Navy, whose view was evidently endorsed by 
the United States Government, considered that his proceed- 
ings were fully justified so long as he could maintain that 
they had been restricted to the very practice of which the 
United States Government now complain, though resorted 
to in a far less aggravated form by His Majesty's ships, and 
of which they appear actually to desire to impung the 
legality." (Ibid., 1916, Supp., p. 759.) 

On April 26, 1916, the Secretary of State in a 
long note stated : 

"In reply it may be stated that the Government of the 
United States advances no claim that British vessels which 
have been and are cruising off American ports beyond the 
three-mile limit have not in so doing been within their 
strict legal rights under international law. The grounds 
for the objection of the Government of the United States 
to the continued presence of belligerent vessels of war cruis- 
ing in close proximity to American ports are based, not upon 
the illegality of such action, but upon the irritation which it 
naturally causes to a neutral country." * * * 

"In time of peace the mobilization of an army, partic- 
ularly if near the frontier, has often been regarded as a 
ground for serious offense and been made the subject of 
protest by the Government of a neighboring country. In 
the present war it has even been the ground for a declara- 
tion of war and the beginning of hostilities. Upon the 
same principle the constant and menacing presence of 
cruisers on the high seas near the ports of a neutral country 
may be regarded according to the canons of international 
courtesy as a just ground for offense, although it may be 
strictly legal." (Ibid., p. 763.) 

The British authorities took the position that 
they could not abandon any of their belligerent 
rights, but instructions had been given "not to 
approach Ambrose Light nearer than six miles." 



56 NAVAL PROTECTION DURING STRAINED RELATIONS 

Protests were also made to Germany, France, 
and Japan in regard to the conduct of vessels of 
war of these states just off or within territorial 
waters. 

Restriction on exports. — Restriction on exports 
from one state to another has often been resorted 
to in order to bring pressure upon the importing 
state. The reason for the pressure may vary and 
being most often domestic in character are usually 
political. 

A Joint Resolution of Congress of the United 
States, approved March 14, 1912, provided : 

"That the joint resolution to prohibit the export of coal or 
other material used in war from any seaport of the United 
States, approved April twenty-second, eighteen hundred and 
ninety-eight, be, and hereby is, amended to read as follows: 

" 'That whenever the President shall find that in any 
American country conditions of domestic violence exist 
which are promoted by the use of arms or munitions of war 
procured from the United States, and shall make proclama- 
tion thereof, it shall be unlawful to export except under such 
limitations and exceptions as the President shall prescribe 
any arms or munitions of war from any place in the 
United States to such country until otherwise ordered by the 
President or Congress. 

" 'Sec. 2. That any shipment of material hereby declared 
unlawful after such a proclamation shall be punishable by 
fine not exceeding ten thousand dollars, or imprisonment not 
exceeding two years, or both.' " (37 Stat. 630.) 

By presidential proclamation this resolution was 
made immediately applicable to Mexico when a 
conditon of " domestic violence" prevailed. 

In 1914 after the outbreak of the World War 
and while the United States was neutral, a Circu- 
lar of the Department of State, October 15, 1914, 



DOMESTIC VIOLENCE AND COMMERCE 57 

referring to trade in contraband and sales to 
belligerents, said : 

•'Furthermore, a neutral government is not compelled by 
international law, by treaty, or by statute to prevent these 
sales to a belligerent. Such sales, therefore, by American 
citizens do not in the least affect the neutrality of the United 
States. 

"It is true that such articles as those mentioned are con- 
sidered contraband and are, outside the territorial jurisdic- 
tion of a neutral nation, subject to seizure by an enemy of 
the purchasing government, but it is the enemy's duty to pre- 
vent the articles reaching their destination, not the duty 
of the nation whose citizens have sold them. If the enemy of 
the purchasing nation happens for the time to be unable to 
do this that is for him one of the misfortunes of war; the 
inability, however, imposes on the neutral government no 
obligation to prevent the sale. 

"Neither the President nor any executive department of 
the Government possesses the legal authority to interfere in 
any way with trade between the people of this country and 
the territory of the belligerent. There is no act of Con- 
gress conferring such authority or prohibiting traffic of this 
sort with European nations, although in the case of neigh- 
boring American Republics Congress has given the President 
power to proclaim an embargo on arms and ammunition 
when in his judgment it would tend to prevent civil strife." 
(Foreign Relations, U. S. 1914, Sup., p. 574.) 

Many restrictions were from time to time im- 
posed upon exportation from the United States of 
munitions and the like under the act of June 15, 
1911, which had entrusted to the President this 
power. 

The restrictions placed on exportation and im- 
portation during the World War were not always 
for military reasons or on the ground of neutral 
obligations, but the disturbance of economic rela- 

93707—39 5 



58 NAVAL PROTECTION DURING STRAINED RELATIONS 

tions sometimes made necessary the conservation 
of national resources by special regulations. 

Attitude of the United States in 1921. — In reply 
to a request from the Oriental Trading Company 
desiring to ship rifles and ammunition to China, 
transmitted through the Governor General of the 
Philippine Islands, the Department of State in- 
formed the Secretary of War of its attitude on 
September 12, 1921, as follows : 

"There has been an understanding since May, 1919, among 
the powers who were allied and associated in the war, 
whereby they undertook to restrict shipments by their na- 
tionals to China of arms and munitions of war as long as it 
was obvious that the importation of such military equip- 
ment into China tended only to prolong the present unfor- 
tunate state of civil strife in that country. This Government 
was enabled to fulfill its part of that obligation by reason of 
those provisions of the Espionage Act which gave the Execu- 
tive control over exports, through the intermediary of the 
War Trade Board. 

"Certain provisions of the Espionage Act of June 15, 1917, 
were repealed by a Joint Resolution of Congress, which was 
approved March 3, 1921. Among those provisions thus re- 
pealed were those which provided for control over exports, 
and the Executive has therefore been deprived of any legal 
basis upon which to exercise further control over shipments 
of arms to China. There would appear to be no reason 
for believing that conditions in China at the present time 
warrant any change in the policy of this Government in this 
matter, and the Department of State is therefore seeking 
to obtain legislation to enable it to continue to cooperate 
with the powers who are parties to the joint declaration of 
May 5, 1919. It is expected that the matter will be brought 
up when Congress convenes the latter part of the present 
month. In the meantime, the Department of State, as a 
matter of policy, is refusing to lend any encouragement or 
support to American manufacturers of munitions who desire 
to sell or ship arms and munitions of war to China." 
(Foreign Relations, U. S., 1921, I, 560.) 



RESTRICTIONS ON COMMERCE, 1936 59 

Restrictions on carriage of munitions to Spain. — 
During the " civil strife" in Spain there were nu- 
merous attempts to restrict commerce both by na- 
tional legislation and international agreement. 

The British Merchant Shipping Act (Carriage 
of Munitions to Spain), 1936 (1 Edw. 8, c. 1), ap- 
plying in general to all ships under British registry 
(except from dominions and dependencies) carry- 
ing munitions etc., provided: 

"I. 1. No article to which this Act applies shall be dis- 
charged at any port or place in Spanish territory or within 
the territorial waters adjacent thereto from a ship to which 
this Act applies, and no such article shall be transhipped on 
the high seas from any such ship into any vessel bound for 
any such port or place, and no such article consigned to or 
destined for any such port or place shall be taken on board 
or carried in any such ship." (31 A. J. I. L. [1937], Doc. 
Supp., p. 100.) 

It was also provided as to an officer empowered to 
enforce this Act, that — 

"(a) he may go on board the ship and for that purpose 
may detain the ship or require it to stop or to proceed to 
some convenient place ; 

(b) he may require the master to produce any documents 
relating to any cargo which is being carried or has been car- 
ried on the ship ; 

(c) he may search the ship and examine the cargo and re- 
quire the master or any member of the crew to open any 
package or parcel which he suspects to contain any articles 
to which this Act applies ; 

"(d) he may make any other examination or inquiry 
which he deems necessary to ascertain whether this Act is 
being or has been contravened ; 

u (e) if it appears to him that this Act is being or has 
been contravened, he may, without summons, warrant, or 
other process, take the ship and her cargo and her master and 
crew to the nearest or most convenient port in a country to 
which this Act extends, in order that the alleged contraven- 



gO NAVAL PROTECTION DURING STRAINED RELATIONS 

tion may be adjudicated upon bv a competent court.' (Ibid., 
p. 101.) 

The United States by joint resolution, January 
8, 1937, prohibited the export of arms, ammunition, 
or implements of war to Spain under penalty of 
fine or imprisonment (50 Stat., pt. I, p. 3). There 
were many other regulations referring to the Span- 
ish conflict giving a degree of supervision to foreign 
states in order that the area of the conflict might be 
limited. 

Attitude of United States Navy. — The Navy of 
the United States through its wide contacts has 
been confronted with many situations where 
strained relations prevailed. These strained rela- 
tions might have been between the United States 
and a foreign state or between two foreign states 
in a manner involving the United States. As a 
guide for officers of the Navy of the United States, 
the Eegulations prescribe : 

"722. On occasions where injury to the United States or to 
citizens thereof is committed or threatened, in violation of 
the principles of international law or treaty rights, the com- 
mander in chief shall consult with the diplomatic represen- 
tative or consul of the United States, and take such steps 
as the gravity of the case demands, reporting immediately 
to the Secretary of the Navy all the facts. The responsi- 
bility for any action taken by a naval force, however, rests 
wholly upon the commanding officer thereof. 

"723. The use of force against a foreign and friendly 
state, or against anyone within the territories thereof, is 
illegal. 

"The right of self-preservation, however, is a right which 
belongs to States as well as to individuals, and in the case of 
States it includes the protection of the State, its honor, and 
its possessions, and the lives and property of its citizens 
against arbitrary violence, actual or impending, whereby the 
State or its citizens may suffer irreparable injury. The con- 



ATTITUDE OP NAVY Q\ 

ditions calling for the application of the right of self-preser- 
vation can not be defined beforehand, but must be left to the 
sound judgment of responsible officers, who are to perform 
their duties in this respect with all possible care and for- 
bearance. In no case shall force be exercised in time of peace 
otherwise than as an application of the right of self-preser- 
vation as above defined. It must be used only as a last re- 
sort, and then only to the extent which is absolutely neces- 
sary to accomplish the end required. It can never be exer- 
cised with a view to inflicting punishment for acts already 
committed. 

"(1) Whenever, in the application of the above-mentioned 
principles, it shall become necessary to land an armed force 
in foreign territory on occasions of political disturbance 
where the local authorities are unable to give adequate pro- 
tection to life and property, the assent of such authorities, or 
of some one of them, shall first be obtained, if it can be done 
without prejudice to the interests involved. 

"(2) Due to the ease with which the Navy Department 
can be communicated with from all parts of the world, no 
commander in chief, flag officer, or commanding officer shall 
issue an ultimatum to the representatives of any foreign 
Government, or demand the performance of any service from 
any such representative that must be executed within a lim- 
ited time, without first communicating with the Navy De- 
partment, except in extreme cases where such action is 
necessary to save life." 

American policy, 1937. — After referring to the 
disturbed international relations prevailing in 
1937 and to the fact that serious hostilities any- 
where were a deep concern of the whole world, Sec- 
retary of State Hull said on July 6 : 

"This country constantly and consistently advocates main- 
tenance of peace. We advocate national and international 
self-restraint. We advocate abstinence by all nations from 
use of force in pursuit of policy and from interference in the 
internal affairs of other nations. We advocate adjustment 
of problems in international relations by processes of peace- 
ful negotiation and agreement. We advocate faithful ob- 



£2 NAVAL PROTECTION DURING STRAINED RELATIONS 

servance of international agreements. Upholding the prin- 
ciple of the sanctity of treaties, we believe in modification of 
provisions of treaties, when need therefor arises, by orderly 
processes carried out in a spirit of mutual helpfulness and 
accommodation. We believe in respect by all nations for the 
rights of others and performance by all nations of estab- 
lished obligations. We stand for revitalizing and strength- 
ening of international law. We advocate steps toward pro- 
motion of economic security and stability the world over. 
We advocate lowering or removing of excessive barriers in 
international trade. We seek effective equality of commer- 
cial opportunity and we urge upon all nations application 
of the principle of equality of treatment. We believe in 
limitation and reduction of armament. Realizing the neces- 
sity for maintaining armed forces adequate for national se- 
curity, we are prepared to reduce or to increase our own 
armed forces in proportion to reductions or increases made 
by other countries. We avoid entering into alliances or en- 
tangling commitments but we believe in cooperative effort by 
peaceful and practicable means in support of the principles 
hereinbefore stated." (Department of State, Press Releases, 
XVII, No. 407, July 17, 1937, p. 41.) 

This statement of policy was circulated to other 
governments in the hope that if they " should ap- 
prove the principles of the declaration as the under- 
lying bases for international relations, the cumu- 
lative effect of their approval would do much to 
revitalize and to strengthen standards desirable in 
international conduct." {Ibid,, p. 87.) 

There was a general approval as shown in re- 
plies from states on the different continents. 

"Brazilian Minister of Foreign Affairs. 

"The Ministry for Foreign Affairs was officially informed 
concerning the declaration of the principles which orientate 
the foreign policy of the United States made on the 16th of 
July by the Secretary of State, Mr. Cordell Hull. The state- 
ment of the Secretary of State having been brought to the 
attention of the President of the Republic by the Minister for 



FOREIGN ATTITUDE OX AMERICAN POLICY, 1937 53 

Foreign Affairs, the latter received instructions from the 
President to make public that the Brazilian Government, en- 
tirely sharing the point of view of the Government of the 
United States concerning the world international political 
situation, fully agrees with those declarations and gives com- 
plete support to the principles formulated therein, which 
have already been warmly advocated in the inter- American 
Conference for the maintenance of peace and at other in- 
ternational political assemblies and which it will do every- 
thing possible to put into practice by the most convenient 
methods at every opportunity which arises." (Ibid., p. 89.) 

"Note from the French Minister of Foreign Affairs to the 
American Ambassador to France. 
"Today, more than ever before, the need is evident for 
solidarity between all the nations of the world and vigilant 
attention to every situation which might lead to a resort to 
force. In counseling moderation in the realm of interna- 
tional affairs and national affairs; in advising nations not 
to interfere in the internal affairs of other nations ; in recom- 
mending the settlement of differences by negotiations and 
peaceful agreements; in insisting that international obliga- 
tions should be faithfully observed and carried out in a 
spirit of justice, mutual helpfulness, and reconciliation, Mr. 
Cordell Hull has stressed those wholesome methods which 
should assure the maintenance of peace." (Ibid., p. 94.) 

"Message From the British Minister for Foreign Affairs 
to the American Ambassador to Great Britain. 
"I have read with deep interest Mr. Hull's statement on 
foreign policy of the 16th of July, the text of which was 
communicated to me by the United States Ambassador. I 
cordially welcome and am in full agreement with the ex- 
pression of opinion contained therein on international prob- 
lems and situations both in the political and economical 
field. Mr. Hull's views on the ever increasing need for the 
preservation of peace, the vital importance of international 
cooperation in every sphere, and the methods which are 
recommended for obtaining these objectives are shared in 
common by His Majesty's Government in the United King- 
dom." (Ibid., p. 95.) 



54 NAVAL PROTECTION DURING STRAINED RELATIONS 

"Statement by the Japanese Government Handed to the 
Secretary of State by the Japanese Ambassador. 
"The Japanese Government wishes to express its concur- 
rence with the principles contained in the statement made 
by Secretary of State Hull on the 16th instant concerning 
the maintenance of world peace. It is the belief of the 
Japanese Government that the objectives of those principles 
will only be attained, in their application to the Far Eastern 
situation, by a full recognition and practical consideration 
of the actual particular circumstances of that region." 
(Ibid., p. 130.) 

"Statement by the South African Prime Minister and 

Minister of External Affairs of the American Charge in 

the Union of South Africa. 

/'The statement of foreign policy by Mr. Cordell Hull in 

every respect conforms with the views held and policy 

adopted from time to time by the Government of the 

Union, for the purpose of defining its own attitude towards 

other states and indicates the principles of conduct which 

it expects to be observed by them in their dealings with the 

Union. 

"I, therefore, heartily approve the statement of policy by 
the Secretary of State, so far an the Union is concerned 
under present circumstances. 

U I say: under present circumstances, for I cannot help 
feeling that if the Union had been in the position of a state 
laboring under wrongs confirmed or perpetuated by agree- 
ment at the point of the bayonet, such agreement could have 
little claim to any degree of sanctity ; and certainly to none 
when the agreement had been obtained in a manner violating 
the established usage of war, or contrary to the dictates of 
international consciences. Before such an agreement can 
be accepted as enjoying the principle of the sanctity of 
treaties there should, it seems to me, first be an equitable 
measure of redress purifying it of the excesses resulting 
therefrom. In other words, a revision of the provisions of 
such an agreement could well be insisted upon by the state 
wronged prior to its approval of the principle of the sanctity 
of treaties. 



INNOCENT PASSAGE 65 

"If this view is correct, Mr. Hull's advocacy of faithful 
observance of international agreements would not require 
qualification of a restrictive nature." (Ibid., p. 103.) 

The replies from many governments were in the 
form of somewhat general comments upon the 
principles underlying the note of Mr. Hull, though 
occasionally there was an intimation that while the 
principles were praiseworthy what was particu- 
larly needed was the will among states to make 
the principles practically applicable. A consider- 
able number of states implied that a long step to- 
ward the application of the principles might be 
found in some system of collective security. 

Innocent passage. — In the Draft Convention, on 
Territorial Waters, Research in International Law, 
Harvard Law School, Article 14, the following was 
proposed : 

"A state must permit innocent passage through its mar- 
ginal seas by the vessels of other states, but it may prescribe 
reasonable regulations for such passage." (23 A. J. I. L., 
Spec. Sup., [1929], p. 295.) 

In the comment on this article, it was said : 

"Even for vessels entitled to exercise the right of innocent 
passage it is obviously necessary that each state should be 
permitted to make reasonable regulations governing that 
passage, subject only to the restriction that these regula- 
tions be uniform for all states. Such regulations may, of 
course, distinguish between different kinds of vessels. For 
example, a littoral state might require all submarine vessels 
of other states to navigate upon the surface in order that 
shipping in the marginal sea may not be subjected to 
unknown risks." (Ibid.) 

The question of innocent passage arose in many 
forms in consequence of attempts of the United 
States to enforce the liquor prohibition amend- 
ment to the Constitution (Article 18), 1919, re- 
pealed 1933. In the British Parliament such ques- 



g(3 NAVAL PROTECTION DURING STRAINED RELATIONS 

tions as the following were raised with the Prime 
Minister : 

"In view of the prohibition laws of the United States and 
their effect on British shipping and the near approach of 
10th June, he can now state what is the policy of His 
Majesty's Government on this question; and whether they 
will still adhere to the long accepted international practice 
under which the laws of its own flag govern and regulate 
the rights, duties and obligations on board a ship, whether 
on the high seas or within the jurisdiction of any other 
nation?" (Parliamentary Debates, Commons, 5th Series, 
CVXYII (1923), 1972.) " 

To this question the Prime Minister replied: 

"His Majesty's Government do not contend that a ship 
entering the territorial waters of a country does not subject 
itself to the jurisdiction of that country, but, as a matter of 
international comity, such jurisdiction is not generally 
exercised except to restrain acts likely to disturb public 
order. No possible disturbance to public order in the 
United States nor injury to any other United States interest 
can arise from the existence of liquor under seal on board a 
ship in United States territorial waters. His Majesty's 
Government accordingly suggested to the United States 
Government that the proposed Regulation is one which 
might properly be discussed with the other maritime Powers 
before it is enforced, but I understand that the United 
States Government do not see their way to comply with this 
request." (Ibid.) 

After negotiation a treaty with Great Britain 
containing the following Article was adopted 
and ratified on May 22, 1924: 

"Article I. The High Contracting Parties declare that 
it is their firm intention to uphold the principle that 3 
marine miles extending from the coastline outwards and 
measured from low-water mark constitute the proper limits 
of territorial waters." (43 Stat., Pt. 2, p. 1761.) 



GENERAL CONCLUSIONS Q7 

Similar treaties were negotiated with other states 
and the right of innocent passage was generally 
accepted. 

General conclusions. — Neither state X nor state 
Y has declared war. These states have no right 
to claim to be acting as belligerents nor to treat 
other states as neutrals. There would, therefore, 
be no right to visit and search as a measure of war. 
No contraband list could be declared, no blockade 
could be established, nor could there be unneutral 
service. 

A state may at any time establish an embargo 
and name in the list of embargoed goods such arti- 
cles as it sees fit. There is always the possibility 
that some state or states may consider such an en- 
bargo as an unfriendly act, whether it restricts the 
movement of domestic or foreign goods. An em- 
bargo is purely domestic and implies no right to 
exercise authority outside the limits of the juris- 
diction of a state. The enforcement of an embargo 
act is, in absence of specific treaty engagements, a 
matter for the state establishing the embargo. 

Alliances between states are for the objects men- 
tioned and are usually strictly interpreted. A de- 
fensive alliance would be effective when one of the 
states parties to the alliance is attacked. The em- 
bargo confers no authority over ships of third 
states on the high sea. The right to enforce an 
embargo within the jurisdiction gives no right 
to deny the right of innocent passage, though, of 
course, measures may be taken to prevent abuse of 
the right. This does not confer the right of visit, 
search, seizure, and condemnation. 

A state has a right to go to war. The existence 
of war changes the relations of all states. Other 



£g NAVAL PROTECTION DURING STRAINED RELATIONS 

states have a right to know when the change takes 
place, as they must adapt their conduct to the 
changed relationship. War has always and natu- 
rally aimed to obtain all possible advantages, and 
neutrality has limited belligerent action; hence 
there has been a conflict of interest between the 
belligerents and the neutrals. 

SOLUTION 

(a) As there is no war and as the law mentioned 
relating to the export of arms, etc., is national in 
its effect, the action of state X has no validity 
under that law even though states C and D have 
proclaimed that a state of war exists. 

(fe) A vessel of war of state Y has the right to 
approach a merchant vessel suspected of piracy or 
other offense against the law of nations for pur- 
pose of identification, but the vessel of war of state 
X has no right to inspect or to take any action in 
regard to the articles in the cargo of a merchant 
vessel of state D and embargoed under domestic 
law. 

(c) The alliance between states E, P, and X 
would bind state E only for defense and not before 
state X or P is at war with a third state. 

(d) The embargo legislation is purely domestic 
and a vessel of war of state C may not lawfully in- 
terfere with a merchant vessel of state M when on 
innocent passage through the territorial waters of 
state C. 



Situation III 
JURISDICTION AND POLAR AREAS 

States O and X as allies are at war with states 
T and Y which are allied. Other states are neu- 
tral. States M, N, O, and P have land bordering 
on or have made claims to jurisdiction over polar 
areas. 

(a) State M prohibits aircraft of all descrip- 
tions and nationalities from entering its jurisdic- 
tion, and orders, under penalty of being shot down, 
an aircraft of state O to alight when it is flying over 
the ice ten miles polarward from the coast. 

(b) State O orders closed a radio station estab- 
lished by state N on the ice polarward fifty miles 
from the coast of state O and previously open to the 
use of all. 

(c) State O prohibits the entrance of any air- 
craft, other than those of state X, polarward from 
its coast. 

(d) A regular aircraft service is maintained be- 
tween state M and state P and the route passes 
near the pole. A state M aircraft in this service, 
in a disabled condition, alights on the ice five miles 
coastward from the pole in the direction of state 
O, but one hundred miles from any land. State O 
learning of this sends an aircraft to seize the air- 
craft of state M as having violated the jurisdiction 
of state O. 

(e) State P proclaims an open water route ten 
miles polarward off its coast but two miles from 

69 



7Q JURISDICTION AND POLAR AREAS 

permanent coast ice to be closed to all navigation 
during the war. 

(/■) State N proclaims a similar open water 
route closed to vessels of war and to all submarines 
except neutral submarines navigating on the sur- 
face with identifying flags displayed. 

How far are the acts of the several states and 
their contentions lawful ? 

SOLUTION 

(a) State M may lawfully prohibit the flight of 
aircraft above its territorial and maritime jurisdic- 
tion. 1 

It is not lawful to interfere with the flight of 
aircraft outside this space. 

(&) State O may not lawfully order the radio 
station of state N to be closed though it may pro- 
test to state N against any violation of neutrality 
in its use. 

(c) State O may lawfully prohibit or regulate 
the entrance to its jurisdiction of any or all air- 
craft. 

(d) State O may not lawfully seize the aircraft 
of state M. 

(e) State P may not lawfully prohibit innocent 
passage though it may issue regulations essential 
to its own protection. 

(/) State N may lawfully prohibit the entrance 
or regulate the movements of vessels of war or 
regulate the movements of other vessels within its 
territorial waters when essential for its protection. 

1 As yet there is no international agreement upon the limit of maritime 
jurisdiction though a minimum of three miles is generally recognized. 



JURISDICTION 7 1 

NOTES 

Jurisdiction. — The term "territory" and the 
term "jurisdiction" have often been confused and 
the courts have been called upon to interpret their 
meaning. The Federal Court referring to the 
meaning of the word "territory" said: 

"Various meanings are sought to be attributed to the 
term 'territory' in the phrase 'the United States and all 
territory subject to the jurisdiction thereof.' We are of 
opinion that it means the regional areas — of land and ad- 
jacent waters — over which the United States claims and 
exercises dominion and control as a sovereign power. The 
immediate context and the purport of the entire section 
show that the term is used in a physical and not a metaphori- 
cal sense — that it refers to areas or districts having fixity of 
location and recognized boundaries. See United States v. 
Bevans, 3 Wheat. 336, 390, 4 L. Ed. 404. It now is settled 
in the United Statse and recognized elsewhere that the 
territory subject to its jurisdiction includes the land areas 
under its dominion and control, the ports, harbors, bays 
and other enclosed areas of the sea along its coast and a 
marginal belt of the sea extending from the coast line out- 
ward a marine league, or three geographic miles." (Lam 
Mow v. Nagle, 24 F. (2d) 316 [1928].) 

Courts of other countries have made a clear dis- 
tinction between territory and jurisdiction as in the 
case of continuous pursuit when pursuit of a vessel 
is commenced within the territorial waters and con- 
tinued upon the high sea as a lawful exercise of 
jurisdiction without any claim to extension of ter- 
ritory. (The Ship North v. The King; 37 Canada, 
S. C. R. 385 [1905].) Jurisdiction is the right to 
exercise state authority and may extend where 
property or domain does not exist. 

Acquisition of jurisdiction. — The common meth- 
ods of acquisition of territorial jurisdiction have 



72 JURISDICTION AND POLAR AREAS 

been: (1) discovery, (2) occupation, (3) conquest, 
(4) cession, (5) prescription, (6) accretion, and 
(7) lease. In the polar region the main questions 
relate to (1) discovery and (2) occupation. Early 
claims on the ground of discovery were often fan- 
tastic in extent. Not merely Protestant Powers 
but also Catholic Powers queried the authority of 
the Pope in assigning the lands of the New World 
to Spanish and Portuguese discoverers. Even 
Francis I of Spain in the sixteenth century de- 
manded evidence in the will of Adam which would 
deprive his country of the right to acquire terri- 
tory by discovery in the New World. Contro- 
versies over priority of discovery were common. 
Beacons, flags, monuments, etc., were set up as 
evidence of title, but it was soon demanded that 
something more than mere discovery be required. 

During the early nineteenth century there were 
many problems arising on the ground that occupa- 
tion of an effective nature must be shown to give 
good title, and a mere intention to occupy is not 
sufficient. 

Notification and occupation, — In early days dis- 
covery and occupation were considered essential to 
title in an area not previously under the jurisdic- 
tion of a recognized state. Later, particularly from 
the middle of the nineteenth century, as the region 
of possible discovery became very limited, the idea 
that proposed occupancy should be made known by 
notification was introduced. This is evident in the 
declarations of the General Act of the Conference 
of Berlin, February 26, 1885 : 

"Art. 34. La Puissance qui dorenavant prendra posses- 
sion d'un territoire sur les cotes du Continent Africain situe 
en dehors de ses possessions actuelles, ou qui, n'en ayant pas 



ISLAND OF BULAMA 73 

eu j usque-la, viendrait a en acquerir, et de meme la Puis- 
sance qui y assumera un Protectorat, accompagnera Facte 
respectif d'une Notification adressee aux autres Puissances 
Signataires du present Acte, afin de les mettre a meme de 
faire valoir, s'il y a lieu, leurs reclamations. 

"Art. 35. Les Puissances Signataires de present Acte 
reconnaissent l'obligation d'assurer, dans les territoires 
occupes par elles, sur les cotes du Continent Africain, 
l'existence d'une autorite suffisante, pour faire respecter les 
droits acquis et, le cas echeant, la liberte du commerce et 
du transit dans les conditions ou elle serait stipulee." (76 
Br. & For. State Papers, p. 19.) 

The Bidama case, 1870. — There had been a long 
pending controversy in regard to sovereignty over 
the island of Bulama off the mouth of the Rio 
Grande river on the west coast of Africa. Portu- 
guese discovery in 1446 was admitted. Later there 
had been periods of British and Portuguese occu- 
pation and various cessions by native chiefs. The 
question as to title was at length referred to the 
President of the United States as arbitrator. The 
President delegated the handling of the case to Mr. 
J. C. Bancroft Davis, then Assistant Secretary of 
State. In the report the opinions of Vattel cited 
by the British were held applicable to this case. 
Discovery would be a good title, " provided it was 
soon after followed by a real possession,' ' settle- 
ment, and actual use. 

It was further added that : 

"It is to be observed, in qualification of these rules, that 
countries inhabited by savage tribes may, under well-estab- 
lished rules of public law, be so occupied and possessed by 
the representatives of a Christian power as to dispossess 
the native sovereignty and transfer it to the Christian power. 
The word 'uninhabited' in the extract from Vattel must 
therefore be taken with this limitation. 

93707—39 6 



74 JURISDICTION AND POLAR AREAS 

"It is also to be remarked that islands in the vicinity of 
the mainland are regarded as its appendages: that the 
ownership and occupation of the mainland includes the 
adjacent islands, even though no positive acts of ownership 
may have been exercised over them." (2 Moore, History 
and Digest of the International Arbitrations to which the 
United States has been a Party, p. 1919.) 

Institut de Droit International, 1888. — After 
long discussion of the question of occupation, the 
Institute of International Law, at the meeting held 
at Lausanne in 1888, adopted a pro jet as follows : 

"Article 1. — L 'occupation d'un territoire a titre de 
souverainete ne pourra etre reconnue comme effective que si 
elle reunit les conditions suivantes: 

"1° La prise de possession d'un territoire enferme dans 
certaines limites, f aite au nom du gouvernement ; 

"2° La notification officielle de la prise de possession. 

La prise de possession s'accomplit par l'etablissement d'un 
pouvoir local responsable, pourvu de moyens suffisants pour 
maintenir l'ordre et pour assurer l'exercice regulier de son 
autorite dans les limits du territoire occupe. Ces moyens 
pourront etre empruntes a des institutions existantes dans 
le pays occupe. 

"La notification de la prise de possession se fait, soit par 
la publication dans la forme qui, dans chaque Etat, est en 
usage pour la notification des actes ofnciels, soit par la voie 
diplomatique. Elle contiendra la determination approxima- 
tive des limites du territoire occupe." (X Annuaire de 
l'Institut de Droit International, p. 201.) 

British position, 1889. — In a communication of 
the Marquis of Salisbury of December 26, 1889, re- 
garding Portuguese claims to territories in the 
vicinity of Zambesi, it was said : 

"The fact of essential importance is, that the territory in 
question is not under the effective government or occupation 
of Portugal, and that if it ever was so, which is very 
doubtful, that occupation has ceased during an interval of 



BRITISH-PORTUGUESE CLAIMS, 1889 75 

more than two centuries. During the whole of that period 
the Government of Portugal has made no attempt either 
to govern or civilize or colonize the vast regions to which 
a claim is now advanced, and it may be said, with respect 
to a very large portion of them, that no Portuguese authority 
has ever attempted their exploration. The practical atten- 
tion of that Government has only been drawn to them at 
last by the successful enterprise of British travellers and 
British settlers. The Portuguese authorities during that 
long interval have made no offer to establish in them even 
the semblance of an effective government, or to commence 
the restoration of their alleged dominion, even by military 
expeditions, until they were stimulated to do so by the 
probability that the work of colonizing and civilizing them 
would fall to the advancing stream of British emigration. 
It is not, indeed, required by international law that the 
whole extent of a country occupied by a civilized Power 
should be reclaimed from barbarism at once; time is neces- 
sary for the full completion of a process which depends 
upon the gradual increase of wealth and population; but, 
on the other hand, no paper annexation of territory can 
pretend to any validity as a bar to the enterprise of other 
nations if it has never through vast periods of time been 
accompanied by a reality, and has been suffered to be inef- 
fective and unused for centuries." (81 Br. & For. State 
Papers, 1888-89, p. 1031.) 

Falkland Islands dependencies. — Under British 
Letters Patent, March 28, 1917, after relating that 
doubt had arisen as to the limits of certain groups 
of islands, it was stated by George V : 

u l. Xow we do hereby declare that from and after the 
publication of these our Letters Patent in the Government 
'Gazette' of our Colony of the Falkland Islands, the De- 
pendencies of our said Colony shall be deemed to include 
and to have included all islands and territories whatsoever 
between the 20th degree of west longitude and the 50th 
degree of West longitude which are situated south of the 
50th parallel of south latitude; and all islands and terri- 
tories whatsoever between the 50th degree of west longitude 



76 JURISDICTION AND POLAR AREAS 

and the 80th degree of west longitude which are situated 
south of the 58th parallel of south latitude." (Ill Br. & 
For. State Papers, 1917-18, p. 16.) 

The area to the south of these parallels would 
seem to extend to the south pole. 

Clipperton Island case, 1931. — While the agree- 
ment to submit to arbitration the question as to the 
title to Clipperton Island had been considered be- 
tween Prance and Mexico from March 2, 1909, the 
award was not rendered till January 28, 1931. The 
island itself was a small coral lagoon nearly 700 
miles south west off the coast of Mexico. It had 
been regarded as of little value and was usually 
unoccupied. The agreement of 1909 had named the 
King of Italy as arbitrator. Referring to the title 
by occupation the arbitrator said: 

"Consequently, there is ground to admit that, when in 
November, 1858, France proclaimed her sovereignty over 
Clipperton, that island was in the legal situation of terri- 
torium nullius, and, therefore, susceptible of occupation. 

"The question remains whether France proceeded to> an 
effective occupation, satisfying the conditions required by 
international law for the validity of this kind of territorial 
acquisition. In effect, Mexico maintains, secondarily to her 
principal contention which has just been examined, that 
the French occupation was not valid, and consequently her 
own right to occupy the island which must still be considered 
as nullius in 1897. 

"In whatever concerns this question, there is, first of all, 
ground to hold as incontestable, the regularity of the act by 
which France in 1858 made known in a clear and precise 
manner, her intention to consider the island as her territory. 

"On the other hand, it is disputed that France took effec- 
tive possession of the island, and it is maintained that with- 
out such a taking of possession of an effective character, the 
occupation must be considered as null and void. 

"It is beyond doubt that by immemorial usage having 
the force of law, besides the animus occupandi, the actual, 



CLIPPERTON ISLAND, 1931 77 

and not the nominal, taking of possession is a necessary 
condition of occupation. This taking of possession consists 
in the act, or series of acts, by which the occupying state 
reduces to its possession the territory in question and takes 
steps to exercise exclusive authority there. Strictly speak- 
ing, and in ordinary cases, that only takes place when the 
state establishes in the territory itself an organization capa- 
ble of making its laws respected. But this step is, properly 
speaking, but a means of procedure to the taking of posses- 
sion, and, therefore, is not identical with the latter. There 
may also be cases where it is unnecessary to have recourse 
to this method. Thus, if a territory, by virtue of the fact 
that it was completely uninhabited, is, from the first moment 
when the occupying state makes its appearance there, at the 
absolute and undisputed disposition of that state, from that 
moment the taking of possession must be considered as ac- 
complished, and the occupation is thereby completed." (26 
A. J. I. L. [1932], p. 393.) 

The award does not accept the conventional agree- 
ment of the Act of Berlin as applicable but refers 
back to the status of 1858 when France proclaimed 
title to the island. 

"It follows from these premises that Clipperton Island 
was legitimately acquired by France on November 17, 1858. 
There is no reason to suppose that France has subsequently 
lost her right by derelictio, since she never had the animus of 
abandoning the island, and the fact that she has not exer- 
cised her authority there in a positive manner does not imply 
the forfeiture of an acquisition already definitely perfected." 
{Ibid., p. 394.) 

Contiguity and propinquity doctrines. — The 
elaim that contiguity gives special rights to a state 
over neighboring areas more or less remote and 
Tarying in nature has frequently been made and on 
differing grounds. One of the most common claims 
has been to islands off the coast of a state, but rela- 
tively near. Without other basis for the validity 
of the claim than mere proximity, the claim has 



7g JURISDICTION AND POLAR AREAS 

been regarded as of little weight, as nearness is in 
itself a relative term. 

On January 23, 1925, the United States and the 
Netherlands agreed to submit to the Permanent 
Court of Arbitration at The Hague the question as 
to " whether the Island of Palmas in its entirety 
forms a part of territory belonging to the United 
States of America or of the Netherlands territory.' J 
In this case the argument for title based on con- 
tiguity was advanced among others. The arbitra- 
tor, Judge Huber, referring to this, says : 

"In the last place there remains to be considered title 
arising out of contiguity. Although States have in certain 
circumstances maintained that islands relatively close to 
their shores belonged to them in virtue of their geographi- 
cal situation, it is impossible to show the existence of a rule 
of positive international law to the effect that islands sit- 
uated outside territorial waters should belong to a State 
from the mere fact that its territory forms the terra firma 
(nearest continent or island of considerable size) . Not only 
would it seem that there are no precedents sufficiently fre- 
quent and sufficiently precise in their bearing to establish 
such a rule of international law, but the alleged principle 
itself is by its very nature so uncertain and contested that 
even Governments of the same State have on different oc- 
casions maintained contradictory opinions as to its sound- 
ness. The principle of contiguity, in regard to islands, may 
not be out of place when it is a question of allotting them 
to one State rather than another, either by agreement be- 
tween the Parties, or by a decision not necessarily based on 
law; but as a rule establishing ipso jure the presumption of 
sovereignty in favour of a particular State, this principle 
would be in conflict with what has been said as to territorial 
sovereignty and as to the necessary relation between the 
right to exclude other States from a region and the duty to 
display therein the activities of a State. Nor is this princi- 
ple of contiguity admissible as a legal method of deciding 
questions of territorial sovereignt} 7 ; for it is wholly lacking 



ISLAND OF PALMAS 79 

in precision and would in its application lead to arbitrary 
results." (Scott, Hague Court Reports, 2d Series, p. 111.) 

It has been admitted that territorial propinquity 
may create special relations between neighboring 
states of which other states may take notice. If 
states are to be considered as equally entitled to 
rights and privileges, a third state might be open 
to criticism if recognizing any right of one to dis- 
regard the rights of the other. Just how far terri- 
torial propinquity may be a ground for recogni- 
tion of a special position on the part of one state 
as regards a neighboring state is an open question, 
but experience seems to show that the precedents 
are of doubtful value. 

The doctrine of contiguity was naturally ad- 
vanced in early claims to jurisdiction following 
discovery. That a certain hinterland appertained 
to the coast, watershed to a river, etc., was usually 
admitted. That the title to the coast gave some 
right in the adjacent waters was an ancient conten- 
tion. What should be the limit of jurisdiction 
based upon contiguity was often a question settled 
by the issue of war when these areas met or over- 
lapped. Some have assimilated the doctrine of 
contiguity to a type of inferred potential effective 
occupation, which still leaves a large area for dif- 
ference of opinion. There has also been a tendency 
to extend this to a doctrine of propinquity. As the 
area of the earth's surface which could be regarded 
as res nulling was effectively occupied, the doctrine 
of propinquity received more attention, but this 
became rather a matter of politics than of law. 

The doctrine of propinquity may also have the 
political appeal of identity of interest as often ad- 
vanced in the solidarity of the Americas or might 



gO JURISDICTION AND POLAR AREAS 

give rise to special interests as stated in the Lans- 
ing-Ishii note of November 2, 1917 : 

"In order to silence mischievous reports that have from 
time to time been circulated, it is believed by us that a pub- 
lic announcement once more of the desires and intentions 
shared by our two Governments with regard to China is 
advisable. 

"The Governments of the United States and Japan recog- 
nize that territorial propinquity creates special relations be- 
tween countries, and, consequently, the Government of the 
United States recognizes that Japan has special interests 
in China, particularly in the part to which her possessions 
are contiguous. 

"The territorial sovereignty of China, nevertheless, re- 
mains unimpaired and the Government of the United States 
has every confidence in the repeated assurances of the Im- 
perial Japanese Government that while geographical posi- 
tion gives Japan such special interests they have no desire to 
discriminate against the trade of other nations or to disre- 
gard the commercial rights heretofore granted by China in 
treaties with other powers. 

"The Governments of the United States and Japan deny 
that they have any purpose to infringe in any way the in- 
dependence or territorial integrity of China and they de- 
clare, furthermore, that they always adhere to the principle 
of the so-called 'open door' or equal opportunity for com- 
merce and industry in China." (Foreign Relations, U. S., 
1917, p. 261) 

In the above note it is recognized that " terri- 
torial propinquity creates special relations" and 
that " Japan has special interests in China, partic- 
ularly in the part to which her possessions are con- 
tiguous," and the two states "mutually declare 
that they are opposed to the acquisition by any 
Government of any special rights or privileges," 
or impairment of the independence or the freedom 
of commerce of China. 






PROPINQUITY AND CONTIGUITY g\ 

This note was the subject of much diplomatic 
correspondence and difference of opinion, and the 
agreement was cancelled by an exchange of notes on 
April 14, 1923, affirming that an identity of view 
had been disclosed in the Washington Conference 
on the Limitation of Armament of the previous 
year. 

That the principle of propinquity would give spe- 
cial relations in an established state which might 
be a subject of negotiation by a third state was not 
admitted by China. 

"The principle adopted by the Chinese Government to- 
wards the friendly nations has always been one of justice 
and equality; and consequently the rights enjoyed by the 
friendly nations derived from the treaties have been con- 
sistently respected, and so even with the special relations 
between countries created by the fact of territorial con- 
tiguity, it is only in so far as they have already been pro- 
vided for in her existing treaties. Hereafter the Chinese 
Government will still adhere to the principle hitherto 
adopted, and hereby it is again declared that the Chinese 
Government will not allow herself to be bound by an agree- 
ment entered into by other nations." (Ibid., p. 270.) 

The tendency to extend the doctrine of contiguity 
to cover political policies has led some writers to 
reject it and to denounce the propinquity theory. 

This attitude of those who reject the doctrine of 
contiguity does not usually involve an entire rejec- 
tion of all claims based upon geographical nearness. 

The claim of potential effective occupation is 
recognized as having legal weight which is demon- 
strable. 

Polar regions. — As other areas of the earth's sur- 
face have become known and have been subjected to 
the jurisdiction of established states, attention has 
been turned to the less known polar regions. These 



g2 JURISDICTION AND POLAR AREAS 

areas have not been clearly defined but different 
states have made claims to jurisdiction in polar 
areas on varying grounds. The areas about the 
north and about the south pole are not identic in 
their characteristics. The economic and strategic 
importance of the areas also differ. Some areas 
are of value for strategic reasons ; in some there are 
deposits of minerals ; fishing and hunting give im- 
portance to some areas; and proximity and other 
reasons give grounds to other claimants of jurisdic- 
tion. 

The value of scientific data obtainable in the polar 
regions has also been emphasized ; particularly the 
value of meteorological investigations. The flora 
and fauna as well as the ethnic characteristics of 
life in the polar regions may offer serviceable data. 

The ancient quest for a North-West passage from 
the Atlantic to the Pacific has lost interest as air- 
craft have made earlier barriers of little impor- 
tance, and many polar air routes have been 
surveyed. 

In recent years the polar regions, north and 
south, have received more attention. The spirit 
of discovery as far as the surface of the earth is 
concerned has been largely confined to these areas. 
Discovery of the geographical north or south pole 
has lured explorers. Economic resources have also 
called for investigation. That there were fish and 
whales in the polar waters has long been known 
and the fisheries have proven valuable. The long 
sought North-West passage may now be by air and 
the time required may be insignificant as compared 
with that contemplated by early explorers. The 
controversies over Wrangel Island or Herald 



POLAR DOMAIN 33 

Island, and over the territories of Greenland 
claimed by Denmark and Norway before the Per- 
manent Court of International Justice in 1932 and 
1933 have attracted relatively little attention. 

While the Arctic ice seems to be for the most 
part mobile at least for some season of the year, 
some of the Antarctic ice seems to be relatively sta- 
tionary. Scientific investigation may determine to 
what extent the ice rests upon the land surface and 
to what extent it is below low-water mark. If the 
seaward limits do not change, it would seem that a 
measure of jurisdiction over permanent ice should 
be in the adjacent land sovereignty. 

Objectives in polar explorations. — Probably it 
would be found that the broadening of the knowl- 
edge of the polar regions has been due to many 
stimuli. The spirit of adventure into unknown re- 
gions has often been evident both in early and late 
expeditions. The lure of a North West or North 
East passage from the Atlantic to the Pacific was 
always present in the minds of some, even before 
aircraft removed many difficulties. The exploita- 
tion of the polar resources, whaling, sealing, fish- 
ing, etc., and recently mining, has attracted a dif- 
ferent type of expedition. Scientific knowledge 
has been the aim of some explorers. The discovery 
of the poles has been sought by some. The exten- 
sion of state authority has naturally been a motive 
prompting to direct or indirect state aid. Often 
the objectives have been mixed and, as stated, 
sometimes misleading. 

Fauchille on polar domain. — The late Paul Pau- 
chille gave much attention to the doctrine of sov- 
ereignty over polar areas and reviewed the various 



£4 JURISDICTION AND POLAR AREAS 

theories which had been advanced. He said in the 
eighth edition of Bonfils, published in 1925 : 

fit ant des territoires, les regions polaires sont susceptibles 
d'appropriation. Mais, etant des territoires glaces, elles ne 
sont pas veritablement habitables; elles son seulement ex- 
ploit ables: les hommes ne sauraient y vivre comme sur les 
autres territoires pour une duree de temps indefinie, ils ne 
peuvent y demeurer que d'une maniere temporaire ; c'est en 
consequence un personnel constamment renouvele qu'il 
faudra y entretenir. II suit de la que ^appropriation dont 
elles sont susceptibles doit necessairement presenter un ca- 
ractere particulier. II ne peut pas s'agir dans de pareilles 
regions d'une occupation proprement dite, et il ne saurait 
etre question d'y instituer sur place un gouvernement et une 
administration avec tous les rouages que ceux-ci impliquent 
d'ordinaire (comp. n°. 554). L'occupation que les poles au- 
torisent est une occupation Sexploitation, non pas une occu- 
pation & habitation. Cella-la est pour les regions polaires la 
seule qui soit admissible. Mais il faut qu'elle existe. Ici, 
comme en ce qui concerne tout autre domaine sans maitre, 
le simple fait de la decouverte est inoperant pour produire un 
droit definitif : il prepare l'appropriation, mais il ne la cree 
pas. Rebelles a toute idee d'un sejour indefini, et necessi- 
tant un personnel constamment changeant, les regions glacees 
sont par la meme incompatibles, de leur nature, avec celle 
d'une souverainete individuelle exclusive. Ce n'est pas a un 
seul Etat, c'est a tous les fitats qu'il faut reconnaitre le droit 
de les exploiter. C'est en definitive d'une sorte de condo- 
minium plural qu 'elles doivent entre l'objet: elles doivent 
devenir une possession commune de tous les membres de la 
famille des nations." (Droit International Public, Tome l r 
2me Partie, § 531 39 , p. 658.) 

Opinion of Professor Hyde. — Professor Hyde in 
1934 in an article entitled " Acquisition of Sov- 
ereignty over Polar Area" takes into account the 
Sector system and its consequences. He concludes 
that — 

"If, on account of the rigour of climatic conditions in the 
polar regions, there is to be a relaxation of the requirements 



EARLY RUSSIAN RULES §5 

of the law demanding occupation as the mode of acquiring 
a right of sovereignty over newly found lands, it should 
be kept within rigid bounds, and never regarded as ap- 
plicable to kindred efforts in the temperate zones. The re- 
laxation should be confined to the waiving of settlement as a 
necessary condition for the perfecting of a right of sov- 
ereignty, provided a claimant state may establish that by 
some other process it is in a position to exercise control over 
what it claims as its own. This requirement should be ap- 
plied in all polar regions. In those of the Arctic, it might, 
however, be recognized that the sovereign of contiguous ter- 
ritory projecting itself into the Arctic Circle was, by reason 
of that fact, in a position to exercise requisite control over 
an extensive area, or at least in a position to make proof of 
the fact. Yet in such case, the doctrine of contiguity should 
not be permitted to supplant the need of proof, as by ac- 
knowledging the possession of a power of control when none 
was found to exist. In the Antarctic regions no assumption 
of the requisite power should be deemed to suffice to beget a 
right of sovereignty, or be accepted as a substitute of proof 
of the requisite power to control." (29 Iowa Law Review, 
January 1934, p. 294.) 

Russian rules, 1821. — A Russian edict of 4/16 
September 1821, published "for the information of 
all men," 

"Rules established for the limits of Navigation and order of 
Communication, along the Cost of the Eastern Siberia, 
the North-western Coast of America, and the Aleutian, 
Kurile, and other Islands 

"Sect. 1. The pursuits of commerce, whaling, and fishery, 
and of all other industry, on all Islands, Ports, and Gulfs, 
including the whole of the North-west Coast of America, 
beginning from Behring's Straits, to the 51° of Northern 
Latitude, also from the Aleutian Islands to the Eastern 
Coast of Siberia, as well as along the Kurile Islands from 
Behring's Straits to the South Cape of the Island of Urup, 
viz : to the 45° 50' Northern Latitude, is exclusively granted 
to Russian Subjects. 



3g JURISDICTION AND POLAR AREAS 

"II. It is therefore prohibited to all Foreign Vessels, not 
only to land on the Coast and Islands belonging to Russia, as 
stated above, but also to approach them within less than 100 
Italian miles. The Transgressor's Vessel is subject to con- 
fiscation, along with the whole cargo." (9 Br. & For. State 
Papers, 1822, p. 473.) 

Exceptions were provided for vessels in distress 
and detailed regulations for other vessels. 

In acknowledging the receipt of the Rules, the 
Secretary of State of the United States said : 

"I am directed by the President of The United States to 
inform you, that he has seen with surprise in this Edict the 
assertion of a Territorial Claim on the part of Russia, ex- 
tending to the 51st degree of North Latitude on this Con- 
tinent; and a Regulation interdicting to all Commercial 
Vessels, other than Russian, upon the penalty of seizure and 
confiscation, the approach, upon the High Seas, within 100 
Italian miles of the shores to which that Claim is made to 
apply. The relations of The United States with His Im- 
perial Majesty have always been of the most friendly char- 
acter; and it is the earnest desire of this Government to 
preserve them in that state. It was expected, before any 
Act which should define the Boundary between the Terri- 
tories of The United States and Russia, on this Continent, 
that the same would have been arranged, by Treaty, between 
the Parties. To exclude the Vessels of our Citizens, from 
the shore, beyond the ordinary distance to which the Terri- 
torial Jurisdiction extends, has excited still greater surprise. 

"This Ordinance affects so deeply the Rights of The 
United States and of their Citizens, that I am instructed to 
inquire, whether you are authorized to give explanations of 
the grounds of Right, upon principles generally recognized 
by the Laws and Usages of Nations, which can warrant the 
Claims and Regulations contained in it." (Ibid., p. 483.) 

The Russian Minister in a long reply, after re- 
lating the historical events leading to Russian 
claims, said of these claims that, they — 

"rest upon three bases required by the general Law of Na- 
tions and immemorial usages among Nations; that is, upon 



RUSSIAN CLAIMS, 1822 37 

the title of first discovery ; upon the title of first occupation ; 
and, in the last place, upon that which results from a peace- 
ful and uncontested possession of more than half a century ; 
an epoch, consequently, several years anterior to that when 
the United States took their place among Independent Na- 
tions. 

"It is moreover evident, that, if the right of the possession 
of a certain extent of the North-west Coast of America, 
claimed by The United States, only devolves upon them in 
virtue of the Treaty of Washington, of the 22d of February, 
1819, and I believe it would be difficult to make good any 
other title, this Treaty could not confer upon the American 
Government any right of claim against the Limits assigned 
to the Kussian Possessions upon the same Coast, because 
Spain herself had never pretended to a similar right. 

u The Imperial Government, in assigning for Limits to 
the Russian Possession on the North-West Coast of America, 
on the one side Behring's Strait, and, on the other, the 51st 
degree of North Latitude, has only made a moderate use of 
an incontestable right; since the Russian Navigators, who 
were the first to explore that part of the American Continent, 
in 1741, pushed their discovery as far as the 49th degree of 
North Latitude. The 51st degree, therefore, is no more 
than a mean Point between the Russian Establishment of 
New Archangel, situated under the 57th degree, and the 
American Colony at the mouth of the Columbia, which is 
found under the 46th degree of the same Latitude." (Ibid., 
p. 485.) 

The Minister, after alluding to the need of 100 
miles protective jurisdiction, also said, 

"I ought, in the last place, to request you to consider, Sir, 
that the Russian Possessions in the Pacifick Ocean extend, 
on the North-west Coast of America, from Behring's Strait 
to the 51st degree of North Latitude, and, on the opposite 
side of Asia, and the Islands adjacent, from the same Strait 
to the 45th degree. The extent of Sea of which these Posses- 
sions form the limits, comprehends all the conditions which 
are ordinarily attached to shut seas (Mers fermees), and 
the Russian Government might consequently judge itself 
authorized to exercise upon this Sea, the right of Sover- 



83 JURISDICTION AM) POLAR AREAS 

eignty, and especially that of entirely interdicting the en- 
trance of Foreigners. But it preferred only asserting its 
essential rights, without taking any advantage of localities." 
{Ibid., p. 487.) 

The Arctic and the United States. — American 
explorers found the Arctic an alluring area after 
the middle of the nineteenth century and made 
many valuable contributions to the knowledge of 
the Arctic, but even the discovery of the North 
Pole, though giving arise to much discussion, did 
not contribute to the territorial extension of the 
United States. 

By the Convention between the United States 
and Russia concluded April 17, 1824, relative to 
fishing and trading, the regulations in regard to 
subjects of each state were entrusted to each state 
in the Pacific Northwest area to 54 .degrees 40 
minutes North latitude. The Treaty of 1832 be- 
tween these Powers extended the privileges of mu- 
tual commercial intercourse and introduced the 
most-favored nation treatment, except as in special 
agreements between Russia and Prussia, and Rus- 
sia and Sweden and Norway. 

By the Convention of March 30, 1867, between 
the United States and Russia, the Emperor ceded 
to the United States — 

"all the territory and dominion now possessed by his said 
Majesty on the continent of America and in the adjacent 
islands, the same being contained within the geographical 
limits herein set forth, to wit : The eastern limit is the line 
of demarcation between the Russian and the British posses- 
sions in North America, as established by the convention be- 
tween Russia and Great Britain, of February 28-16, 1825, 
and described in Articles III and IV of said convention, in 
the following terms : 

" 'Commencing from the southernmost point of the island 
called Prince of Wales Island, which point lies in the par- 



ALASKA CESSION, 1867 g9 

allel of 54 degrees 40 minutes north latitude, and between 
the 131st and 133d degree of west longitude, (meridian of 
greenwich,) the said line shall ascend to the north along 
the channel called Portland channel, as far as the point of 
the continent where it strikes the 56th degree of north lati- 
tude ; from this last mentioned point, the line of demarcation 
shall follow the summit of the mountains situated parallel to 
the coast as far as the point of intersection of the 141st de- 
gree of west longitude, (of the same meridian;) and finally, 
from the said point of intersection, the said meridian line 
of the 141st degree, in its prolongation as far as the Frozen 
ocean. 

" *IV. With reference to the line of demarcation laid down 
in the preceding article, it is understood — 

" '1st. That the island called Prince of Wales Island shall 
belong wholly to Russia/ (now, by this cession, to the United 
States.) 

" '2d. That whenever the summit of the mountains which 
extend in a direction parallel to the coast from the 56th 
degree of north latitude to the point of intersection of the 
141st degree of west longitude shall prove to be at the dis- 
tance of more than ten marine leagues from the ocean, the 
limit between the British possession and the line of coast 
which is to belong to Russia as above mentioned (that is to 
say, the limit to the possessions ceded by this convention) 
shall be formed by a line parallel to the winding of the 
coast, and which shall never exceed the distance of ten 
marine leagues therefrom.' 

"The western limit within which the territories and do- 
minion conveyed, are contained, passes through a point in 
Behring's straits on the parallel of sixty-five degrees thirty 
minutes north latitude, at its intersection by the meridian 
which passes midway between the islands of Krusenstern, or 
Ignalook, and the island of Ratmanoff, or Noonarbook, and 
proceeds due north, without limitation, into the same Frozen 
Ocean. The same western limit, beginning at the same initial 
point, proceeds thence in a course nearly southwest, through 
Behring's straits and Behring's sea, so as to pass midway be- 
tween the northwest point of the island of St. Lawrence 
and the southeast point of Cape Choukotski, to the meridian 

1)3707— 38 7 



90 .iriUSMCTloX ANI> POLAR AREAS 

of one hundred and seventy-two west longitude ; thence, from 
the intersection of that meridian, in a southwesterly direc- 
tion, so as to pass midway between the island of Attou and 
the Copper island of the Kormandorsni couplet or group, in 
the North Pacific ocean, to the meridian of one hundred and 
ninety-three degrees west longitude, so as to include in the 
territory conveyed the whole of the Aleutian islands east of 
that meridian." (15 Stat, 539.) 

This convention conferred upon the United 
States only those rights which Russia then pos- 
sessed in the area described. 

In 1920 the United States participated in a con- 
ference at Paris which in a multilateral treaty 
(signed, February 9, 1920, in force, August 14, 
1925) determined the status of the Archipelago of 
Spitzbergen, including. Bear Island, with view to 
assuring " their development and peaceful utilisa- 
tion." Under this treaty, by Article I — 

"The High Contracting Parties undertake to recognise, 
subject to the stipulations of the present Treaty, the full 
and absolute sovereignty of Norway over the Archipelago 
of Spitsbergen, comprising, with Bear Island or Beeren- 
Eiland, all the island situated between 10° and 35° longitude 
East of Greenwich and between 74° and 81° latitude North, 
especially West Spitsbergen, North-East Land, Barents 
Island, Edge Island, Wiche Islands, Hope Island or Hopen- 
Eiland, and Prince Charles Foreland, together with all 
islands great or small and rocks appertaining thereto." 
(43 Stat. 1892.) 

Norway in accepting this treaty agrees to give 
equality of treatment to nationals of the other 
Powers. There is in Article IV special provision 
in regard to radio : 

"All public wireless telegraphy stations established or to 
be established by, or wi£h the authorisation of, the Nor- 
wegian Government within the territories referred to in 
Article 1 shall always be open on a footing of absolute 



NORTH OF ALASKA 91 

equality to communications from ships of all flags and from 
nationals of High Contracting Parties, under the conditions 
laid down in the Wireless Telegraphy Convention of July 
5, 1912, or in the subsequent International Convention which 
may be concluded to replace it. 

''Subject to international obligations arising out of a state 
of war, owners of landed property shall always be at liberty 
to establish and use for their own purposes wireless teleg- 
raphy installations, which shall be free to communicate on 
private business with fixed or moving wireless stations, in- 
cluding those on board ships and aircraft." (Ibid.) 

Alaska and the polar area. — In the convention 
between Great Britain and Russia of February 
18/16, 1825, the boundary line between Russia and 
British possessions in America on the continental 
mainland was to follow northward 56 degrees 
North latitude from the summit of the coast moun- 
tains to the point of intersection of the 141st degree 
of West longitude and from the point of intersec- 
tion was to follow this meridian "in its prolonga- 
tion as far as the Frozen Ocean." The English 
version was a translation of the French "dans son 
prolongement jusqu'a la Mer Glaciale." 

The convention concluded March 30, 1867, be- 
tween the United States and Russia by which the 
Russian title in the North West passed to the 
United States, being in French and English, con- 
contained the same clause. In Article I of this 
convention, the western line of boundary in 
"Behring's Strait " is' fixed at the meridian which 
passes midway between the islands of Ignalook and 
Noonarbook "due north, without limitation, into 
the same Frozen Ocean." Apparently this con- 
vention of 1867 between the United States and 
Russia was referring in its terms to the same area 



92 JURISDICTION AND POLAR AREAS 

that had been the subject of negotiation between 
Great Britain and Russia in 1825. 

Interpretation of " jusqu'a." — The significance 
of the words "jusqu'a" as used in defining bound- 
aries has been the subject of dispute. The in- 
terpretation of jusqu'a was involved in the Ad- 
visory Opinion No. 9 of the Permanent Court of 
International Justice. September 4, 1924, in re- 
gard to the Monastery of Saint-Naoum. The para- 
graphs in which the words occur were as follows: 

"1) Les territoires sur lesquels s'etendront les travaux de 

la Commission ne peuvent. raster indetermines. Ses limites 
seront, a l'ouest, les montagnes separant la region cotiere 
attribute a l'Albanie jusqu'a Phtelia, de la vallee d'Argyro- 
eastro. Au nord-est, la ligne froutiere de l'ancien caza otto- 
man de Koritza; entre ces deux regions, la ligne iudiquee 
dans le memorandum present e par M. Venizelos a la reunion 
formera la limite septentrionale des travaux de la Commis- 
sion, tandis qu'au sud et sud-est ceux-ci s'etendront jusqu'a 
la ligne proposee par PAutriche-Hongrie. 

"2) II est des a present etabli que la region cotiere 
jusqu'a Phtelia, y compris Pile de Sasseno, la region situee 
au nord de la ligne grecque, ainsi que l'ancien caza ottoman 
de Koritza, avec la rive ouest et sud du lac d'Ochrida, s'eten- 
dant du village de Lin jusqu'au monastere de Sveti-Naoum, 
feront integralement partie de l'Albanie." (Publications, 
Permanent Court of International Justice, Ser. B, No. 9, 
p. 18.) 

These paragraphs translated into English read, 

"(1) The territories over which the Commissioner's work 
will extend cannot be left undetermined. Their limits will 
be, on the west, the mountains separating the coastal region 
attributed to Albania as far as Phthelia, from the valley of 
Argyrocastro. On the north-east, the boundary of the 
former Ottoman Casa of Koritza ; between these two regions, 
the line indicated in the memorandum submitted by M. 
Venizelos to the meeting will form the northern limit of the 



MEANING OF "JUSQU'A" 93 

Commission's work; while to the south and south-east it 
will extend as far as the line proposed by Austria-Hungary. 
"(2) It is hereby decided that the whole of (integrale- 
ment) the coastal region as far as Phthelia, including the 
island of Sasseno, the region to the north of the Greek line 
and the former Ottoman Casa of Koritza, together with the 
western and southern shore of Lake Ochrida from the 
village of Lin as far as the Monastery of Sveti-Naoum shall 
form part of Albania." (Ibid.) 

Of these paragraphs the opinion says, 

u As regards the frontier which the Commission had to 
settle in this district, the London decision of August 11th, 
1913, in its second paragraph fixes it when it determines 
which districts shall 'henceforth' form an integral part of 
Albania and gives their limits. It follows that the refer- 
ence, contained in the first paragraph of the decision of 
August 11th, to the Austro-Hungarian line has not neces- 
sarily the meaning which Serbia desires to give it. The 
frontier at Saint -Naoum, far from having been fixed in 
favour of the latter country, had indeed remained undeter- 
mined, as the Ambassadors' Conference thought. In fact, 
as regards determining it, the second paragraph of the 
decision of August 11th seems to give no further guidance 
than the single expression: jusqu'a. As regards that ex- 
pression the following is to be observed : 

"One possible interpretation of the expression jusqu'a 
is that Saint-Naoum is included in Albania; another that 
it is excluded from that country. The Court considers it 
impossible to affirm which of these interpretations should 
be accepted. Numerous instances have been cited of the use 
of this expression (jitsqu'a) both in an inclusive and in an 
exclusive sense. The Court does not think it possible to 
affirm that the meaning of this word in connection with a 
place like the Monastery of Saint-Naoum necessarily im- 
plies either its inclusion or exclusion. It should, however, 
be observed that in the same paragraph, side by side with 
the expression jusqii'a Saint-Xaoum,, is to be found the ex- 
pression: jusqu/a Phthelia which is shown by the facts of 
the case to mean : 'Phthelia inclusive.' " (Ibid., p. 20.) 






Q4 JURISDICTION AND POLAR AREAS 

Fur seals. — Toward the end of the nineteenth 
century, the fur seal conservation in the Bering- 
Sea and the North Pacific Ocean became a matter 
of negotiation between the United States and 
Russia. After the exchange of many notes, a 
modus vivendi was concluded on May 4, 1894. 
Provision was made for establishing " zones out- 
side the territorial waters of Russia." The para- 
graphs relating to the zones were as follows : 

"1. The Government of the United States will prohibit 
citizens of the United States from hunting for fur-seal 
within a zone of ten nautical miles along the Russian coasts 
of Behring Sea, and of the North Pacific Ocean, as well as 
within a zone of thirty nautical miles around the Komand- 
orsky (Commander) Islands and Tulienew (Robben) Is- 
land, and will promptly use its best efforts to ensure the 
observance of this prohibition by citizens and vessels of the 
United States. 

"2. Vessels of the United States engaged in hunting fur- 
seal in the above-mentioned zones outside of the territorial 
waters of Russia may be seized and detained by the naval 
or other duly commissioned officers of Russia ; but they shall 
be handed over as soon as practicable to the naval or other 
commissioned officers of the United States or to the nearest 
authorities thereof. In case of impediment or difficulty in 
so doing, the commander of the Russian cruiser may con- 
fine his action to seizing the ship's papers of the offending 
vessels in order to deliver them to a naval or other commis- 
sioned officer of the United States, or to communicate them 
to the nearest authorities of the United States as soon as 
possible. 

"3. The Government of the United States agrees to cause 
to be tried by the ordinary courts, with all due guarantees 
of defense, such vessels of the United States as may be seized, 
or the ship's papers of which may be taken, as herein pre- 
scribed, by reason of their engaging in the hunting of fur- 
seal within the prohibited zones outside of the territorial 
waters of Russia aforesaid." (28 Stat. 1202.) 






CLAIMS OF HINTERLAND 95 

Hinterland doctrine. — Claims to polar areas 
have brought forward the "hinterland doctrine" in 
a sort of reverse direction from the coast line out- 
ward rather than from the coast line inland as in 
the nineteenth century claims in Africa. Secre- 
tary of State Olney in a note to the British Am- 
bassador said of this : 

"It can not be irrelevant to remark that 'spheres of influ- 
ence' and the theory or practice of the 'Hinterland' idea are 
things unknown to international law and do not as yet rest 
upon any recognized principles of either international or 
municipal law. They are new departures which certain 
great European powers have found necessary and convenient 
in the course of their division among themselves of great 
tracts of the continent of Africa, and which find their sanc- 
tion solely in their reciprocal stipulations. 'Such agree- 
ments,' declares a modern English writer on international 
law, 'remove the causes of present disputes ; but, if they are 
to stand the test of time, by what right will they stand? 
We hear much of a certain 'Hinterland' doctrine. The ac- 
cepted rule as to the area of territory affected by an act of 
occupation in a land of large extent has been that the crest 
of the watershed is the presumptive interior limit, while the 
flank boundaries are the limits of the land watered by the 
rivers debouching at the point of coast occupied. The extent 
of territory claimed in respect of an occupation on the coast 
lias hitherto borne some reasonable ratio to the character of 
the occupation. But where is the limit to the 'Hinterland' 
doctrine? Either these international arrangements can 
avail as between the parties only and constitute no bar 
against the action of any intruding stranger, or might indeed 
is right.' Without adopting this criticism, and whether the 
'spheres of influence' and the 'Hinterland' doctrines be or 
be not intrinsically sound and just, there can be no pretense 
that they apply to the American continents or to any 
boundary disputes that now exist there or may hereafter 
arise. Nor is it to be admitted that, so far as territorial dis- 
putes are likely to arise between Great Britain and the 
United States, the accepted principles of international law 



95 JURISDICTION AND POLAR AREAS 

are not adequate to their intelligent and just consideration 
and decision. For example, unless the treaties looking to 
the harmonious partition of Africa have worked some 
change, the occupation which is sufficient to give a state title 
to territory cannot be considered as undetermined. It must 
be open, exclusive, adverse, continuous, and under claim of 
light. It need not be actual in the sense of involving the 
possessio pedis over the whole area claimed. The only pos- 
session required is such as is reasonable under all the cir- 
cumstances — in view of the extent of territory claimed, its 
nature, and the uses to which it is adapted and is put — while 
mere constructive occupation is kept within bounds by the 
doctrine of contiguity. 

'"It seems to be thought that the international law govern- 
ing territorial acquisition by a state through occupation is 
fatally defective because there is no fixed time during which 
occupation must continue. But it is obvious that there can 
be no such arbitrary time limit except through the consensus,, 
agreement, or uniform usage of civilized states." (Foreign 
Relations, U. S., 1896, p. 235.) 

Russian customs waters, 1910. — In 1910 the Rus- 
sian authorities raised question as to whether Great 
Britain had protested the claim of the United 
States to a twelve mile maritime custom's jurisdic- 
tion. The United States replied in the negative. 
In 1909 Russia had adopted a law u w T hereby the 
area of supervision by the Russian customs author- 
ities is extended to twelve marine miles from low- 
water mark." (Foreign Relations, U. S., 1912, p. 
1288.) At the same time it was reported that a 
British steamer — 

"the Onward was seized on the charge of fishing within Rus- 
sian territorial waters; but she was voluntarily released by 
the Russian Government upon its appearing that when ar- 
rested she was, though perhaps within twelve miles of a line 
from headland to headland of the White Sea, at a distance 
of more than twelve miles from the shore. The case is there- 



RUSSIAN REGULATIONS 97 

fore of no significance as indicating the intention of the Rus- 
sian Government to insist upon the extension of its terri- 
torial control over the marginal seas, whether for customs 
purposes only, or for other jurisdictional purposes." (Ibid.) 

The British and Japanese Governments protested 
an extension of Russian maritime jurisdiction. 

Russia on maritime jurisdiction, 1912. — Ques- 
tions arose upon the jurisdiction of states beyond 
the three-mile limit in several states in 1912. 

Russia had interpreted its law in regard to cus- 
toms regulations on December 10/23, 1909, as 
follows : 

"The surface of the water for twelve marine miles from 
extreme low- water mark from the seacoasts of the Russian 
Empire, whether mainland or islands, is. recognized as the 
Marine Customs area, within the limits of which every ves- 
sel, whether Russian or foreign, is subject to supervision by 
those Russian authorities in whose charge is the guarding 
of the frontiers of the Empire." (Foreign Relations, U. S., 
1912, p. 1289.) 

This interpretation of rights over the marginal 
sea was reaffirmed in subsequent Russian legisla- 
tion and proposals were made to extend the appli- 
cation of the act to fisheries and other maritime 
undertakings as well as to close certain sea areas off 
the Russian coast. 

The arguments that the range of cannon had in- 
creased, that there was a scarcity of fish, etc., were 
advanced in support of the claim for extension of 
jurisdiction. 

Rules were proclaimed by Russia in 1911 for 
fishing under the Russo-Japanese Convention of 
1907. In these regulations it was stated : 

"Where the extent of the seashore radius is not defined by 
special international enactments or treaties, the present rules 



98 JURISDICTION AND POLAR AREAS 

cover the coastal sea to a distance of three geographical miles 
( = 12.02 marine miles=20.87 versts), counting from the line 
of the lowest ebb-tide, or from the extremity of the coastal 
standing ice. 

"The present rules do not cover the Amur estuary from a 
line connecting Cape Lazareff on the mainland to Cape 
Pogobi on the island of Saghalin, to a line connecting Cape 
Perovskiy on the mainland with the northern tributaries to 
the Baikal Gulf on the island of Saghalin." {Ibid., p. 1303.) 

The American Ambassador (Guild) reviewed the 
situation in a note to the Secretary of State, Feb- 
ruary 3, 1912, saying that while the whole matter 
was "most complicated and confusing," the under- 
standing seemed to be that — 

"Russia proposes ultimately to extend her control in every 
way to a distance of twelve miles from all her coasts border- 
ing on the ocean. This has not yet been fully accomplished, 
but only in part. The question naturally groups itself into 
three divisions : 

"1. The exercise of customs authority to a distance of 
twelve miles from all her coasts on the open sea. 

"This law was approved by the Emperor December 10/23, 
1909, promulgated January 1/14, 1910, and is now in force. 
As yet, so far as can be ascertained, no case calling for special 
international protest has occurred under it. 

"2. The extension of Russian jurisdiction over all open-sea 
fisheries on the Pacific coasts within twelve miles of the lands 
of the Russian Empire. 

"This law was passed May 29/June 11, 1911, and went into 
force December 25/January 7, last. 

"3. The law extending jurisdiction over fisheries conducted 
in the White Sea and within twelve miles of the Archangel 
Government was reported favorably by the Committee to the 
Duma last June, but has not yet been passed. It lies on the 
table and it is reported that English influence is responsible 
for the delay in its passage. 

"England has formally protested against all three of these 
laws in particular and against the attitude of Russia in gen- 
eral in regard to the extension of jurisdiction from three 



TWELVE MILES CLAIMED 99 

miles to twelve. Not being, however, specially interested in 
the Pacific Coast fisheries, England has confined vigorous 
action to the Archangel and White Sea fisheries, where her 
interests are large. England hopes to be able to get this 
proposed law postponed long enough to permit the matter to 
be presented before the next Hague Conference in 1915. 
The President of the Duma has assured the British Ambas- 
sador that the project can not be reached by the present 
Duma, and M. Sazonov practically admitted the same thing 
to me. 

"Japan also has protested in general against the whole 
proposition of extension of jurisdiction to twelve miles from 
shore in the open sea, but she has confined her vigorous ac- 
tion to the fisheries in the Pacific, where her direct interests 
are enormous. The annual Japanese catch of fish in what 
are now claimed to be Russian waters is valued in gross by 
the Japanese Embassy at 80,000,000 roubles. 

"Japan contends that the section of these laws dealing 
with Pacific fisheries is not only in violation of international 
law, but is also a violation of the spirit of the existing 
Russo-Japanese Fishery Agreement." (Ibid, p. 1304.) 

Soviet decree, 1926.— On April 15, 1926— 

"The Presidium of the Central Executive Committee of 
the Union of Soviet Socialist Republics decrees : — 

"All discovered lands and islands, as well as all those that 
may in the future be discovered, which are not at the date of 
the publication of this decree recognised by the Government 
of the U. S. S. R. as the territory of a foreign Power, are 
declared to be territories belonging to the U. S. S. R., within 
the following limits : 

"In the Northern Arctic Ocean, from the northern coast 
of the U. S. S. R. up to the North Pole, between the meridian 
32°4'35" east longitude from Greenwich, passing along the 
eastern side of Vaida Bay through the triangulation mark on 
Kekursk Cape, and meridian 168°49'30" west longitude from 
Greenwich, passing through the middle of the strait which 
separates Ratmanov and Kruzen stern Islands of the Dio- 
mede group of islands in the Behring Straits." (125 Br. & 
For. State Papers, 1926, Pt. II, p. 1064.) 



100 JURISDICTION AND POLAR AREAS 

British Soviet temporary agreement, 1930. — 
The limits for fisheries was partially outlined in a 
temporary agreement, May 22, 1930 : 

"The Government of the United Kingdom of Great Brit- 
ain and Northern Ireland and the Government of the Union 
of Soviet Socialist Republics, being mutually desirous to 
conclude as soon as possible a formal convention for the regu- 
lation of the fisheries in waters contiguous to the northern 
coasts of the territory of the Union of Soviet Socialist Re- 
publics, have meanwhile decided to conclude the following 
temporary agreement to serve as a modus Vivendi pending 
the conclusion of a formal convention : — 

"Art. 1. — (1) The Government of the Union of Soviet 
Socialist Republics agree that fishing boats registered at the 
ports of the United Kingdom may fish at a distance of from 
3 to 12 geographical miles from low water mark along the 
northern coasts of the Union of Soviet Socialist Republics 
and the islands dependent thereon, and will permit such 
boats to navigate and anchor in all waters contiguous to the 
northern coasts of the Union of Soviet Socialist Republics. 

"(2) As regards bays, the distance of 3 miles shall be 
measured from a straight line drawn across the bay in the 
part nearest entrance, at the first point where the width does 
not exceed 10 miles. 

" (3) As regards the White Sea, fishing operations by fish- 
ing boats registered at the ports of the United Kingdom 
may be carried on to the north of latitude 68° 10' north, out- 
side a distance of 3 miles from the land. 

"(4) The waters to which this temporary agreement ap- 
plies shall be those lying between the meridians of 32° and 
48° of east longitude. 

"2. Nothing in this temporary agreement shall be deemed 
to prejudice the views held by either contracting Govern- 
ment as to the limits in international law of territorial 
waters. 

"3. The present temporary agreement comes into force on 
this day and shall remain in force until the conclusion and 
coming into force of a formal convention for the regulation 
of the fisheries in waters contiguous to the northern coasts 
of the territory of the Union of Soviet Socialist Republics, 



U. S. S. K. ATTITUDE JQl 

subject, however, to the right of either contracting Govern- 
ment tit any time to give notice to the other to terminate this 
agreement, which shall then remain in force until the expira- 
tion of (> months from the date on which such notice is 
given.'* (132 Br. & For. State Papers, 1930, Pt. 1, p. 332.) 

Lakhtine's statement of JJ. S. S. R. attitude, 
1930. — After the World War there was a growing 
interest in the Polar regions. The Arctic from its 
nearness to the areas that had been concerned in 
the war became of particular interest, and expedi- 
tions were fitted out in various countries which 
increased the knowledge of the Arctic area. 

Lakhtine, the Secretary-Member of the Com- 
mittee of Direction of the Section of Aerial Law 
of the Union of Societies "Ossoaviachim" of U. S. 
S. E., would be expected to represent the Soviet 
point of view at the time when he was writing in 
1930. In a general statement he said : 

"Within, or rather to the north of, the Arctic Circle there 
lie still open to claims of jurisdiction: (1) discovered lands 
and islands, (2) undiscovered lands and islands, (3) ice for- 
mations, (4) sea regions, (5) air regions. Each of these 
categories has a legal status in international law as possible 
objects of the right of possession and jurisdiction." (24 
A.J. I. L. [1930], p. 704.) 

Lakhtine states that the rigors of Arctic climate 
and other physical conditions make the usual re- 
quirements for acquisition difficult in the Arctic 
regions. These have been discovery and continued 
occupation and, more recently, notification. He 
finds that hitherto the political and economic mo- 
tives for occupation and annexation have not been 
strong and says that — 

"Inasmuch, therefore, as the economic possibilities were 
confined to a relatively narrow maritime belt, sovereignty 
over the lands and islands of the Arctic Ocean has been, 



102 JURISDICTION AND POLAR AREAS 

hitherto, exercised by the adjacent littoral states without the 
required formalities of effective occupation. 

"As a consequence, the legal principle of 'occupation' as 
applied to the Arctic and Antarctic has been rendered inap- 
plicable. It has also become evident that in Polar regions 
'effective occupation' cannot be realized, and a substitute 
principle that sovereignty ought to attach to littoral states 
according to 'region of attraction' is now suggested and prac- 
tically applied. In support of this principle several illus- 
trations can be given of the practices of States in the region 
of the Antarctic. For instance, England, and then France, 
acquired sovereignty over islands and areas of land within 
the Antarctic Circle ; England chiefly basing her claim upon 
possession of the Falkland Islands, and France, here, upon 
possession of Madagascar. Neither England nor France 
w r ere in the least disconcerted by the fact that the areas an- 
nexed in this manner had not been effectively occupied, and 
that neither had made settlements. These facts did not pre- 
vent them from acquiring control over the whole of the 
hunting, seal fisheries, etc., in the waters adjacent to these 
possessions, and in some places wholly to prohibit them to 
foreigners. 

kt Let us revert to the consideration of the present legal 
status of lands and islands lying within the Polar circles. 
It will be clearer perhaps for the moment to refer to the sec- 
tion of 'regions of attraction' of contiguous northern States." 
(Ibid.) 

The statements in regard to the degree of control 
acquired by England and France may be open to 
question. Analogies drawn from the Antarctic 
would not necessarily be applicable to the Arctic. 

Lakhtine describes what he considers are the " re- 
gions of attraction" in the north polar region and 
reviews to some extent the discussions in regard to 
the Canadian claims, concluding that "it is obvious 
that ' effective occupation' is realized by the activity 
of the U. S. S. R. no less, if not even more com- 
pletely, than, for example, Canada in the case of 



LAKHTINE ON POLAR AREAS 103 

her Polar lands in the same latitude." (Ibid., p. 
707.) 

Lakhtine also bases title upon notes such as that 
of September 20, 1916, and the decree of April 15, 
1926: 

"The Presidium of the Central Executive Committee of 
the Union of Soviet Socialist Republics decrees : — 

"All discovered lands and islands, as well as all those that 
may in the future be discovered, which are not at the date of 
the publication of this decree recognised by the Government 
of the U. S. S. R. as the territory of a foreign Power, are 
declared to be territories belonging to the U. S. S. R., within 
the following limits : 

"In the Northern Arctic Ocean, from the northern coast 
of the U. S. S. R. up to the North Pole, between the meridian 
32 4'35" east longitude from Greenwich, passing along the 
eastern side of Vaida Bay through the triangulation mark on 
Kekursk Cape, and meridian 168°49'30" west longitude 
from Greenwich, passing through the middle of the strait 
wh : ch separates Ratmanov and Kruzenstern Islands of the 
Diomede group of islands in the Behring Straits." (124 
Br. & For. State Papers, p. 1064.) 

From the notes and decrees Lakhtine states : 

"Therefore, at present, the rights of the U. S. S. R. over 
the lands and islands, situated within the sector mentioned in 
the decree, are strictly based and precisely defined." (24 
A.J. I. L. [1930], p. 709.) 

He cited Fauchille, who reviewing the climatic 
conditions and difficulties of occupation, said, 

"II suit de la que l'appropriation dont elles sont suscep- 
tibles doit necessairement presenter un caractere particulier. 
II ne peut pas s'agir dans de pareilles regions d'une occupa- 
tion proprement dite, et il ne saurait etre question d'y insti- 
tuer sur place un gouvernement et une administration avec 
tous les rouages que ceux-ci impliquent d'ordinaire. Inoccu- 
pation que les poles autorisent est une occupation oVexploita- 
tion, non pas une occupation d' habitation. Celle-la est pour 
les regions polaires la seule qui soit admissible. Mais il faut 



104 JURISDICTION AM) POLAR AREAS 

qu'elle existe. lei, comnie en ce qui conceme tout autre 
domaine sans maitre, le simple fait de la decouverte est in- 
operant pour produire un droit definitif : il prepare Impro- 
priation, niais il ne la cree pas." (Traite de droit interna- 
tional public, t. I, Pt. 2, p. 668.) 

After further discussion Lakhtine sums up the 
position of the U. S. S. R. on undiscovered lands 
and islands as follows : 

"The question, then, of the legal status of the undiscovered 
Arctic territories may be regarded as solved not only as a 
theory but by positive law. That is to say, the said lands 
and inlands being still undiscovered are already presumed to 
belong to the national territory of the adjacent Polar State 
in the sector of the region of attraction in which they are to 
be founds (24 A. J. I. L. [1930], p. 711.) 

As to ice formations, he says : 

"It must be remembered that some of the immovable ice 
fields are utilized for land communication, and that it is pos- 
sible to establish there intermediate aerial stations, etc. We 
are of the opinion that floating ice should be assimilated 
legally to open polar seas, whilst ice formations that are 
more or less immovable should enjoy a legal status equivalent 
to polar territory. Polar States acquire sovereignty over 
them within the limits of their sectors of attraction." (lbid. r 
p. 712.) 

Referring to the sea regions, Lakhtine affirms, 
after considering what he regards as practice in the 
Arctic : 

''Thus the proposed legal status for the high seas of the 
Arctic, is, in its essential part, nearly identical with that of 
'territorial waters.' 

"Summing up we reach the following conclusions : 

"1. Polar States wield sovereignty over sea regions cov- 
ered with ice. according to their sectors of attraction. 

"2. Littoral States wield sovereignty over land-locked seas 
free from ice, and over gulfs and bays. 

"3. Littoral States are entitled to a somewhat limited sov- 
ereignty over all remaining sea regions free from ice, as well 



POLAR AIR SPACE 1Q5 

as over territorial waters, maritime belts and waters between 
islands according to their sectors of attraction." (Ibid., 
p. 714.) 

The air regions naturally receive attention at 
this time and Lakhtine after the preceding con- 
clusions, says: 

"The problem yet remaining to be solved is that of the 
right of Polar states to sovereignty over the aerial space 
above the remaining water area of the Arctic Ocean, free 
from ice, i. e., the high sea. 

"Inasmuch as the legal status of these water areas is closely 
assimilated to that of territorial waters over which a state 
does exercise a limited sovereignty; and since, according to 
the international law of today a littoral State exercises un- 
limited jurisdiction over the atmosphere above its territorial 
waters, there is no reason for treating the question of the 
legal status of these Arctic air regions in a different manner. 

"This argument is strengthened when we realize the im- 
possibility of using airships for economic purposes exclu- 
sively in this part of Arctic aerial space. If an airship 
should be used for operations connected with fishing and 
hunting in these open waters, it would be as necessary to 
obtain the permission of the littoral State as it would be to 
obtain permission for fishing and hunting from vessels. 
Moreover, it is impossible to use the air for aerial communi- 
cation without crossing ice regions, territorial waters and 
territories belonging to a State which exercises sovereignty 
over the atmosphere above. 

"Hence we conclude that each Polar State exercises sover- 
eignty over the aerial space above the whole region of attrac- 
tion- of its sector. Mr. L. L. Breitfus supports this opinion. 
Writing in 1928 he says: 'Within each of these sectors, an 
adjacent State exercises its sovereignty over discovered as 
well as over undiscovered lands and islands, this sovereignty 
being exercised not only over land, but also to a certain ex- 
tent (yet to be precisely fixed internationally) over seas cov- 
ered with ice, surrounding these lands and islands and as 
well over air regions above this sector.' ' (Ibid., p. 714.) 

93707—38 8 



206 JURISDICTION AND POLAR AREAS 

He divides the Arctic area into five sectors and 
allocates these on treaty and other grounds; then 
says: 

"As to the ownership of the Xorth Pole, it should be re- 
marked that the Pole is an intersection of meridian lines of 
the said five sectors. Neither legally, nor in fact does it 
belong to anyone. It might be represented as an hexahedral 
frontier post on the sides of which might be painted the 
national colors of the state of the corresponding sector.'' 
(Ibid., p. 717.) 

Bering Sea Award, 1893. — In the treaty of 
Washington, 1892, agreeing to the arbitration of 
the jurisdictional rights of the United States over 
the waters of the Bering Sea and the preserva- 
tion of the "fur seals in or habitually resorting to 
said waters," there were five questions proposed. 
The first question was : 

'•What exclusive jurisdiction in the sea now known as the 
Bering's Sea, and what exclusive rights in the seal fisheries 
therein, did Russia assert and exercise prior and up to the 
time of the cession of Alaska to the United States?" (27 
Stat. 947, 949.) 

Six of the seven arbitrators decided as to this 

point : 

"By the Ukase of 1821 Russia claimed jurisdiction in the 
sea now known as the Bering's Sea, to the extent of 100 
Italian miles from the coasts and islands belonging to her, 
but. in the course of the negociations which led to the con- 
clusion of the Treaties of 1824 with the United States and of 
1825 with Great Britain, Russia admitted that her jurisdic- 
tion :n the said sea should be restricted to the reach of can- 
non shot from shore, and it appears that, from that time up 
to the time of the cession of Alaska to the United States, 
Russia never asserted in fact or exercised any exclusive juris- 
diction in Bering's Sea, or any exclusive rights in the seal 
fisheries therein beyond the ordinary limit of territorial 
waters." (I Fur Seal Arbitration. Proceedings of the Tri- 
bunal of Arbitration, p. 77.) 



MARGINAL SKA 



107 



Width of territorial tvaters. — There was an in- 
formal expression of opinion upon the width of ter- 
ritorial waters at the Conference for the Codifica- 
tion of International Law, The Hague, 1930. Of 
thirty-three declarations, sixteen favored three 
miles, ten favored four miles, and seven favored 
six miles. M. Egoriew, representing the U. S. S. R. 
said, after these opinions had been given : 

"If one takes into consideration the state of positive law 
at the present time, as it can be discovered in the legislation 
of the different States through treaties and diplomatic cor- 
respondence, it is necessary to recognise the great diversity 
of view which exists regarding the extent in which the exer- 
cise of the rights of the Coastal State exists in the waters 
called territorial and adjacent. The exercise of such rights 
for all purposes or for certain purposes is admitted some- 
times within the limit of three, sometimes four, six, ten, or 
twelve miles. 

"The reasons, both historical and theoretical, involved by 
some States and disputed by others, cannot be put into oppo- 
sition to these facts and the rule or actual necessity for States 
to ensure their needs, particularly in waters along the coast 
which are not used for international navigation. This as- 
pect which has been already noted in the literature on the 
subject, as well as in debates, in this Commission, cannot be 
overlooked. 

"Under these conditions it would be better to confine one- 
self to a general statement to the effect that the use of inter- 
national maritime waterways must under no conditions be 
interfered with." (24 A. J. I. L., Sup. [1930], p. 257.) 

Canadian Arctic. — Since 1576 wdien Martin Fro- 
bisher discovered the bay which bears his name, 
near to the entrance to Hudson Strait, the British 
have had an important part in opening the Arctic 
area North of the American continent. The juris- 
diction over the area became a matter of particular 
discussion after Lieutenant William A. Mentzer of 
the Engineer Corps, U. S. N., applied to the British 



IQg JURISDICTION AM) POLAR AREAS 

Consul at Philadelphia, February 10, 1874, for a 
grant of land of about twenty square miles on Cum- 
berland Sound. This led to correspondence between 
the British Colonial Office and the Governor Gen- 
eral of Canada and on April 3, 1874, the Colonial 
Office wrote to the Governor General of Canada : 

"I request that you will communicate these papers confi- 
dentially to your ministers for their observation. It seems 
to me desirable in reference to this and similar questions to 
be informed whether your government would desire that the 
territories adjacent to those of the Dominion on the North 
American continent, which have been taken possession of in 
the name of this country but not hitherto annexed to any 
colony, or any of them, should now be formally annexed to 
the Dominion of Canada. 

"Her Majesty's government of course reserve for future 
consideration the course that should be taken in any such 
case, but they are disposed to think that it would not be 
desirable for them to authorize settlement in any unoccupied 
British territory near Canada unless the Dominion Govern- 
ment and Legislature are prepared to assume the responsi- 
bility of exercising such surveillance over it as may be neces- 
sary to prevent the occurrence of lawless acts or other abuses 
incidental to such a condition of things." (Southern Baffin 
Island. Department of Interior, p. 9.) 

There was further correspondence and in 1880 an 
Imperial Order in Council, without fixing bound- 
aries, tendered to Canada — 

"all the British possessions on the North American continent 
not hitherto annexed to any colony." 

The implied responsibilities were gradually as- 
sumed by the Canadian Government. 

The map of the Department of Interior showing 
the Canadian Northwest Territories indicates the 
eastern boundary in the Arctic as starting from the 
North Pole along the line of longitude 60° to a 
point midway between Cape Brevoort, northern 



CANADIAN ARCTIC 1Q9 

Greenland and Cape Union, Ellesmere Island, and 
then in a southerly direction along the waters sep- 
arating Greenland and Ellesmere Island. The 
western boundary follows the line 141° south to 
the eastern boundary of Alaska at Demarcation 
Point in the Arctic Ocean. The claim is to a fan- 
shaped sector north of Canada and extending to 
the North Pole, in which are many islands. 

The boundaries of the Canadian Arctic w<ere in- 
definite but discoveries by expeditions sent out 
from time to time increased the known area and 
the hydrographical, geological, and other knowl- 
edge of these areas. 

From 1903 a more effective control was planned 
as was evident in instructions given to the com- 
mander-in-charge of an expedition to " Hudson 
Bay and northward there f ore ": 

''The Government of Canada having decided that the time 
has arrived when some system of supervision and control 
should be established over the coast and islands in the north- 
ern part of the Dominion, a vessel [the Xeptune] has been 
selected and is now being equipped for the purpose of pa- 
trolling, exploring, and establishing the authority of the 
Government of Canada in the waters and islands of Hudson 
Bay, and the north thereof. * * * 

"The knowledge of this far northern portion of Canada is 
not sufficient to enable definite instructions to be given you 
as to where a landing should be made, or a police post estab- 
lished ; decision in that respect to be left to the Board of 
Three above mentioned, and wherever it is decided to land 
you will erect huts and communicate as widely as possible 
the fact that you are there as representative of the Canadian 
Government to administer and enforce Canadian laws, and 
that a patrol vessel will visit the district annually, or more 
frequently. 

"It may happen that no suitable location for a post will be 
found, in which case you will return with the vessel but you 



\\Q JURISDICTION AND POLAR AREAS 

will understand that it is the desire of the Government that, 
if at all possible, some spot shall be chosen where a small 
force representing the authority of the Canadian Govern- 
ment can be stationed and exercise jurisdiction over the sur- 
rounding waters and territory. 

"It is not the wish of the Government that any harsh or 
hurried enforcement of the laws of Canada shall be made. 
Your first duty will be to impress upon the captains of whal- 
ing and trading vessels, and the natives, the fact that after 
considerable notice and warning the laws will be enforced as 
in other parts of Canada." (Ibid., p. 14.) 

Canadian claim, 1924. — When asked in the Cana- 
dian House of Commons, April 7, 1924, if other 
states were claiming sovereignty over islands to 
the north of Canada, Mr. Stewart replied : 

"Of course my honorable friend is aware that interna- 
tional law, in a vague sort of way, creates ownership of un- 
claimed lands within one hundred miles of any coast, even if 
possession has not been taken. At least there is a sort of 
unwritten law in that respect. Of course possession is a 
very large part of international law as well as any other 
law." (Canada Debates, House of Commons, 1924, p. 1111.) 

On June 10, 1925, when question was again raised 

in regard to the Arctic islands, Mr. Stewart said: 

"Indeed, I made the statement in the House the other 
evening that we claimed all the territory lying between 
meridians 60 and 141." (Ibid., 1925, p. 4069.) 

On the same date, Mr. Stewart, in reply to a ques- 
tion as to whether the jurisdiction of Canada ex- 
tended to the North Pole, said, "We claim that we 
go to it." (Ibid., p. 4084.) Further discussion 
showed that it was not expected that any nation 
would claim the North Pole, but would claim land 
lying polarward from their coasts. 

Recognition of Arctic sovereignty. — In 1930 
claims to sovereignty were made by Norway and 



NORWEGIAN ATTITUDE 



111 



Great Britain over certain islands in the Arctic 
and these claims were reciprocally recognized. 

"Eoyal Norwegian Legation 

London, August 8, 1930. 
'\Sir, 

"Acting on instructions from my government, I have the 
honor to request you to be good enough to inform His Maj- 
esty's Government in Canada that the Norwegian Govern- 
ment, who do not, as far as they are concerned, claim sover- 
eignty over the Sverdrup Islands, formally recognize the 
sovereignty of His Britannic Majesty over these islands. 

"At the same time, my government is anxious to empha- 
size that their recognizance of the sovereignty of His Britan- 
nic Majesty over these islands is in no way based on any 
sanction whatever of what is named 'the sector principle.' 

I have, &c. 

Daniel Steen 
{Charge d' Aft 'aires, a. i.). 
"Sir, 

With reference to my note of today in regard to my gov- 
ernment's recognition of the sovereignty of His Britannic 
Majesty over the Sverdrup Islands, I have the honor, under 
instructions from my government, to inform you that the 
said note has been despatched on the assumption on the part 
of the Norwegian Government that His Britannic Majesty's 
Government in Canada will declare themselves willing not to 
interpose any obstacle to Norwegian fishing, hunting or in- 
dustrial and trading activities in the areas which the recog- 
nition comprises. 

I have, &c. 

Daniel Steen 
(Charge d' Aft 'aires, a. i.)" 

(27 A. J. I. L. [1933], Sup. p. 93.) 

The Government of Canada was unable to grant 
the fishing and other rights mentioned because 
these were reserved for the aboriginal population, 
and the Norwegian government concurred. 



\\2 JURISDICTION AND POLAR AREAS 

In November 1930 the following note and reply 
was exchanged : 

"Oslo. November IS, 1930. 

"M. LE MlNISTRE d'EtAT, 

"As your Excellency is doubtless aware, on the 9th May, 
1929, the Norwegian Minister in London addressed a note to 
His Majesty's Principal Secretary of State for Foreign Af- 
fairs, announcing that, by a royal decree dated the 8th May, 
Jan Mayen Island had been placed under Norwegian 
sovereignty. 

"I now have the honor by direction of His Majesty's Sec- 
retary of State for Foreign Affairs to inform your Excel- 
lency that His Majesty's Government in the United Kingdom 
have taken note of this decree and formally recognize Nor- 
wegian sovereignty over Jan Mayen Island. 

"I am instructed to add that, His Majesty's Government 
not having been informed of the grounds on which Norwe- 
gian sovereignty was extended to Jan Mayen Island, their 
recognition of that sovereignty is accorded independently of 
and with all due reserves in regard to the actual grounds on 
which the annexation may have been based. 

I avail, &c. 

Kenneth Johnstone." 

"The Ministry for Foreign Affairs 

Oslo. November 19, 1930. 
"M. le Charge d'affaires, 

"In a note of the 18th instant you were so good as to state 
that His Britannic Majesty's Government recognized Nor- 
way's sovereignty over Jan Mayen Island. 

"I have the honor, while acknowledging the receipt of 
your note, to ask you to convey to your government the 
thanks of the Norwegian Government for their friendly atti- 
tude towards Norway, which has found expression in the 
above-mentioned recognition. 
"I avail, &c. 

(For the Minister for Foreign Affairs) , 

Aug. Esmarch." 
(Ibid., p. 92.) 



ANT ARCTIC CLAIMS 



113 



Ross Dependency, 19 23. — By British Order in 
Council of July 30, 1923, it was stated that — 

"Whereas by 'The British Settlements Act, 1887,' it is, 
amongst other tilings, enacted that it shall be lawful for His 
Majesty in Council from time to time to establish all such 
laws and institutions and constitute such Courts and officers 
as may appear to His Majesty in Council to be necessary for 
the peace, order and good government of His Majesty's sub- 
jects and others within any British settlement ; 

"And whereas the coasts of the Ross Sea, with the islands 
and territories adjacent thereto, between the 160th degree of 
East Longitude and the 150th degree of West Longitude, 
which are situated south of the 60th degree of South Lati- 
tude, are a British settlement within the meaning of the said 
Act; 

"And whereas it is expedient that provision should be 
made for the government thereof : 

"Now, therefore, His Majesty, by virtue and in exercise of 
the powers by the said Act, or otherwise in His Majesty 
vested, is pleased, by and with the advice of his Privy Coun- 
cil, to order, and it is hereby ordered, as follows : 

"1. From and after the publication of this Order [August 
16, 1923] in the 'Government Gazette of the Dominions of 
New Zealand' that part of His Majesty's Dominions in the 
Antarctic Seas, which comprises all the islands and terri- 
tories between the 160th degree of East Longitude and the 
150th degree of West Longitude which are situated south of 
the 60th degree of South Latitude shall be named the Ross 
Dependency. 

"2. From and after such publication as aforesaid the Gov- 
ernor-General and Commander-in-Chief of the Dominion of 
Xew Zealand for the time being (hereinafter called 'the 
Governor*) shall be the Governor of the Ross Dependency; 
and all the powers and authorities which by this Order are 
given and granted to the Governor for the time being of the 
Ross Dependency are hereby vested in him." (117 Br. & 
For. State Papers, p. 91.) 

In this Order in Council no southern limit was 
named for the British territory. 



|X4 JURISDICTION AND POLAR AREAS 

American writers on polar areas. — In recent 
years American writers have given considerable 
attention to topics related to polar areas. There 
was for many years a keen interest in exploration 
and discoveries in these regions without any 
further purpose than in astronomical discoveries. 
Who would first reach the North Pole became an 
interesting competition long after the hopes for an 
easy northwest water passage had disappeared. 
The rewards of polar fisheries widened knowledge 
of polar areas. 

In concluding an article on Arctic Exploration 

and International Law in 1909, Dr. James Brown 

Scott said : 

"It would therefore appear that arctic discovery as such 
vests no title, and that the arctic regions, except and in so 
far as they have been occupied, are in the condition of Spitz- 
bergen, that is to say, no man's land." (3 A. J. I. L. [1909], 
p. 941.) 

After the World War there was an increase in 
attention to the significance of control of the polar 
regions from the political point of view. Mr. 
David Hunter Miller in an article in Foreign 
Affairs in April 1927 raises certain questions 
saying : 

"The area of the earth's surface north of the Arctic Circle 
(66°30', as usually drawn; strictly it is 66°312/3') com- 
prises over eight million square miles. What States have 
sovereignty over this vast region \ To what countries are 
we to assign the known and the unknown?" (4 Foreign 
Affairs, p. 47.) 

After reviewing the various claims to the Arctic 

territories, -Mr. Miller sums up the claims as 

follows : 

"It comes to this: the areas round the North Pole, what- 
ever they may be, form three or four great cone-shaped 



MR. MILLER ON POLAR REGIONS H§ 

sectors — the Canadian sector from 60° west to 141° west; 
the American sector from 141° west to 169° west; and the 
great Russian sector running from 169° west to some un- 
defined line in the neighborhood of 30° or 40° east longitude. 
The remainder of the circle, from say 40° east to 60° west, 
would, so far as this theory goes, be unassigned, but, very 
fittingly, that remainder seems to contain no land at all 
north of Spitsbergen and Greenland. Possibly a few islands 
close to the north Greenland coast are exceptions to this 
statement. 

"Whatever may be said by way of argument against this 
Canadian theory, it is certainly a highly convenient one. 
All unknown territory in the Arctic is appropriated by 
three Great Powers and divided among them on the basis 
of the more southerly status quo. Certainly if these three 
Powers are satisfied with such a partition, the rest of the 
world will have to be." (Ibid, p. 59.) 

Referring briefly to the Antarctic in 1927, after 
mentioning Coats Land, Enderby Land, Kemp 
Land, etc., Mr. Miller says: 

"It may be assumed that each 'Land,' while not capable of 
precise delimitation and perhaps referring primarily to the 
coast, is intended to include the segment to the south as far 
as the Pole, the hinterland or 'hinter-ice,' so to speak. Taken 
Jill together, with the Ross Dependency and the Falkland 
Islands Dependency, they would include nearly all of the 
Antarctic Continent.'' (5 Ibid., p. 509.) 

The judgment of the Permanent Court of Inter- 
national Justice of April 5, 1933, concerning the 
Legal Status of Eastern Greenland paid great re- 
spect to ancient claims even though these had not 
been followed by actual and continued control. 
There were, however, for many years diplomatic 
assertions of rights over Greenland territory. In 
a declaration accompanying the treaty confirming 
the purchase of the Danish West Indies by the 
United States on August 4, 1916 (proclaimed Janu- 
ary 25, 1917), it was stated "that the Government 



Ug JURISDICTION AM» POLAR AREAS 

of the United States of America will not object to 
the Danish Government extending their political 
and economic interests to the whole of Greenland. 
Professor diaries Cheney Hyde says of this and 
other diplomatic communications of the claimants : 

"Nevertheless, the readiness of the court to find in the 
conduct in behalf of the monarchs of Norway and Denmark 
the creation and maintenance of rights of sovereignty over 
an unoccupied area, and the early development of the terri- 
torial limits of those rights by assertions of authority that 
were and remained unsupported by the exercise of actual 
administrative control or occupation, is of much signifi- 
cance." (27 A. J. I. L. [1933], p. 738.) 

The polar .sector. — The polar sector to which ref- 
erence has been made since early in the nineteenth 
century is a spherical triangle with apex at the pole 
and bounded by tw 7 o meridians, and having usually 
as a base a coast line or a parallel of latitude. 
Within this area various degree of control may be 
claimed and inchoate title to all lands is usually 
claimed. 

The sector theory. — The sector theory as applied 
to polar areas would cover the area of a spherical 
triangle the base of which would be the line of polar 
jurisdiction of a state, and the apex the pole so far 
as this area is free from other jurisdiction. The 
claim is also made that the jurisdiction would ex- 
tend below the surface of the sector to the center 
of the earth and above the sector to the limit of 
aerial jurisdiction. 

Whether the base line of the polar sector must 
be wholly or in part within the polar circle has 
been a debatable question, but it would be more 
difficult to determine just where this line should be 
if not limited to the polar area. 



THE SECTOR DOCTRINE \yj 

In the case before the Permanent Court of Inter- 
national Justice in 1933 on the Legal Status of 
Eastern Greenland, even though much of the area 
of Greenland is north of the Arctic Circle, the three 
mile limit of coast jurisdiction seems to have been 
recognized. 

Opinion of Smedal. — Gustav Smedal, who has 
given much attention to the sector doctrine, said : 

"The sector principle is not a legal principle having a 
title in the law of nations. This is partly admitted by those 
who uphold it. Nor should the principle be embodied in 
international law, for one reason because it aims at a 
monopoly which will doubtless delay, and partly prevent, 
an exploitation of the polar regions. 

"It is of interest to observe how States that claim 
sovereignty in sector areas nevertheless attempt to take 
charge of lands lying in these areas by effective occupation. 
By so doing they show they fully realise that a territorial 
sovereignty which they may rightly require to be respected 
by foreign States, must be based on a more solid foundation 
than the sector principle." (Acquisition of Sovereignty 
over Polar Areas, p. 64.) 

Aerial sovereignty. — Changing attitudes toward 
rights in the air marked the early decades of the 
twentieth century. Even the Institute of Inter- 
national Law in 1906 favored the doctrine of free- 
dom of the air subject only to limitations essential 
to the security of the subjacent state. With the 
coming of the World War, it became evident that 
the doctrine of freedom of the air was no longer 
practicable after the development of aircraft and 
radio. Control of the superjacent air was assumed 
by neutrals and by belligerents to the limit of the 
jurisdiction of states, and the Convention for the 
Regulation of Aerial Navigation, 1919, recognized 
"that every Power has complete and exclusive sov- 



llg JURISDICTION AND POLAR AREAS 

ereignty over the air space above its territory," and 
this included territorial waters. Over areas which 
are not under any jurisdiction, as the high seas, the 
air is free and the delineation of maritime jurisdic- 
tion therefore becomes important. 

Aerial commerce. — During the period since the 
World War, civil aerial commerce has increased in 
number of aircraft and in passengers, and in mail 
carried and miles flown, at a ratio that seems al- 
most inconceivable. In 1926 air express in the 
United States was less than 4,000 pounds ; in 1935 
the total was nearly 14,000,000 pounds. The 
speed of aircraft in Europe increased in the five 
year period from 1930 to 1935 from about 275 kilo- 
meters per hour to more than 700 kilometers. The- 
radius of flight has almost eliminated distance so 
that the limits of national boundaries are insignifi- 
cant and some states may be flown over in a few 
minutes. Aids to aerial navigation through radio- 
and other means have greatly facilitated aerial 
commerce. The knowledge of weather conditions 
is easily transmitted from surface stations. Some 
of the difficulties of flight in the upper altitudes 
are being overcome and enthusiasts are even look- 
ing forward to interplanetary journeys. 

Aircraft and neutral jurisdiction. — From the na- 
ture of aerial navigation it is evident that domestic- 
legislation of a single state could cover only a lim- 
ited space within which aircraft would normally 
operate. The period of the World War, 1914-18,. 
gave ample opportunity for testing the attitude of 
neutral states toward belligerent aircraft. The- 
prohibition of entrance to neutral jurisdiction was 
general and many belligerent aircraft were shot 
down when above neutral land or maritime juris- 



AERIAL JURISDICTION HQ 

diction. Even in time of peace, military aircraft 
are often forbidden to fly over foreign territory 
without previous authorization to be requested 
through diplomatic representatives. 

Aircraft in distress. — During the World War 
aircraft of a belligerent entering neutral territory 
in distress or in a disabled condition were usually 
interned, and the unratified rules of the Commis- 
sion of Jurists, The Hague, 1923, accepted intern- 
ment as the treatment to be accorded to belligerent 
aircraft entering neutral jurisdiction "for any rea- 
son whatsoever. '' That a neutral aircraft in dis- 
tress entering a belligerent jurisdiction should be 
interned or has violated any law does not neces- 
sarily follow. That a belligerent would be justified 
in taking precautions essential to its safety and to 
the unhampered carrying out of its military plans 
is not denied. This may even extend to the area of 
immediate military operations on the high sea, but 
not to an area more remote. 

Commission of Jurists, 1923. — The Commission 
of Jurists w 7 hich drew up the rules for aerial war- 
fare, 1923, formulated the following : 

"Article 37. Members of the crew of a neutral aircraft 
which has been detained by a belligerent shall be released 
unconditionally, if they are neutral nationals and not in the 
service of the enemy. If they are enemy nationals or in 
the service of the enemy, they may be made prisoners of war. 

"Passengers are entitled to be released unless they are in 
the service of the enemy or are enemy nationals fit for mili- 
tary service, in which cases they may be made prisoners of 
war. 

"Release may in any case be delayed if the military in- 
terests of the belligerent so require. 

"The belligerent ma} 7 hold as prisoners of war any mem- 
ber of the crew or any passenger whose service in a flight 
at the close of which he has been captured has been of special 



|20 JURISDICTION AND POLAR AREAS 

and active assistance to the enemy." (1924 Naval War 
College, International Law Documents, p. 130.) 

Comment on this article explains that — 

"If they are of enemy nationality or in the service of the 
enemy, or engaged in a violation of neutrality, there is good 
reason for detaining them as prisoners of war. If not, they 
should be released unconditionally. 

"Passengers who are in the service of the enemy or who 
tire enemy nationals fit for military service may likewise be 
detained." (Ibid.) 

It was admitted that temporary delay in release 
might be a military exigency without infringing 
on the right. When crew or passengers had ren- 
dered military service during the flight they might 
be made prisoners of war regardless of nationality. 
This rule was said to be in conformity with World 
War practice but had not received " unanimous as- 
sent/ ' because it was "an extension of the accepted 
rules of international law" and lack of provisions 
for unconditional release. 

It has been admitted that reservists in transit 
from a neutral state to a belligerent to enter mili- 
tary service may be allowed to depart by a neutral 
state provided this does not constitute the setting 
on foot of a military expedition from the neutral 
state. That persons already embodied in the mili- 
tary service of a belligerent might be liable to be 
removed from a vessel seemed to be in accord with 
the practice during the World War. That citizens 
of neutral states might be in such a category would 
seem to be very unusual, as foreign enlistment is 
contrary to the domestic law of most states and is a 
violation of neutrality. Journeying to a belliger- 
ent country for the purpose of enlisting is not pro- 
hibited. Even the rules of the Commission of 



POLAR TRANSIT 121 

Jurists, 1923, presume liability on the ground that 
" services have been rendered." The liability 
seems to rest upon persons who are " embodied in 
the service" and therefore under legal obligation 
to serve, or persons who "have rendered service." 

Transit in polar regions, — The movement of per- 
sons and property in the polar regions has long 
been a capital problem. The climatic conditions 
have been very severe in some parts and snow and 
ice have added difficulties. Long periods of dark- 
ness further limited activities. When sailing ves- 
sels relied solely on air currents, their movements 
were to some degree seasonal and correspondingly 
slow, and the speed of sailing vessels in Arctic ice 
was relatively insignificant. Russian ice breakers, 
however, became increasingly serviceable. Dog 
and reindeer sleds were used for some purposes. 
More recently steam vessels, . tractors, aero-sleds 
and various types of aircraft and radio have made 
polar regions relatively accessible and removed 
many barriers. 

Merchant submarines, — It has been mentioned as 
a possibility that if a satisfactory surface passage 
through the polar ice cannot be found, a passage 
under the ice for a part of the distance might be 
discovered. This has led to the renewal of the dis- 
cussion as to whether submarine merchant vessels 
would be admitted to waters of foreign states. 

The entrance of foreign merchant submarines be- 
came a subject of discussion in 1916 when the Ger- 
man submarine Deatschland entered American wa- 
ters. The fact that the United States was neutral 
and Germany was at war led the British Govern- 
ment to give the Secretary of State of the United 

93707—39 9 



122 JURISDICTION AND POLAR AREAS 

States quite full information upon the British at- 
titude in the matter in a communication of July 3, 
1916: 

"Now, persistent rumours are current that a German sub- 
marine is on its way to a United States port. In view of 
such a possibility, I am directed by Sir Edward Grey to 
submit for your consideration some of the views held by 
His Majesty's Government on the issues raised by the visit 
of such a craft to a neutral port. 

"It is unlikely that a German submarine would cross to 
an American port except for the purpose of conducting 
hostile operations on this side of the Atlantic. The practice 
of admitting belligerent vessels of war into neutral ports 
and allowing them supplies arises, as you are aware, out of 
the exigencies of life at sea and from the hospitality which 
it is customary to extend to vessels of friendly powers. But 
the principle does not extend to enabling such vessels to 
utilise neutral ports and obtain supplies for the purpose of 
facilitating their belligerent operations. 

"In 1904 when the Russian Baltic Fleet was about to sail 
for the Far East to attack the Japanese forces and was ex- 
pected to coal in British ports, His Majesty's Government 
publicly defined their attitude in the above sense and made 
it clear that the use of British ports by belligerent men-of- 
war under such circumstances could not be regarded by them 
as consistent with the declared neutrality of Great Britain 
in the war then in progress. 

"The enemy submarines have been endeavoring for nearly 
eighteen months to prey upon the Allied and neutral com- 
merce, and throughout that period enemy governments have 
never claimed that their submarines were entitled to obtain 
supplies from neutral ports. This must have been due to 
the fact that they thought they would be met with a refusal 
and that hospitality could not be claimed as of right. The 
difficulty of knowing the movements or controlling the sub- 
sequent action of the submarines renders it impossible for 
the neutral to guard against any breaches of neutrality after 
the submarine has left port and justifies the neutral in draw- 
ing a distinction between surface ships and submarines. 
The latter, it is thought, should be treated on the same 






MERCHANT SUBMARINES 123 

footing as seaplanes or other aircraft and should not be 
allowed to enter neutral ports at all. This is the rule pre- 
scribed during the present war by Norway and Sweden. 
Another point of distinction between surface ships and sub- 
marines should be borne in mind. A surface vessel demand- 
ing the hospitality of a neutral port runs certain inevitable 
risks; its whereabouts become known and an enemy cruiser 
can await its departure from port. This and similar facts 
put a check on the abuse by belligerent surface ships of 
neutral hospitality. No such disadvantages limit the use to 
which the Germans might put neutral ports as bases of 
supplies for submarine raiders. 

"For these reasons, in the opinion of His Majesty's Gov- 
ernment, if any enemy submarine attempts to enter a neutral 
port, permission should be refused by the authorities. If 
the submarine enters it should be interned unless it has been 
driven into port by necessity. In the latter case it should be 
allowed to depart as soon as necessity is at an end. In no 
circumstances should it be allowed to obtain supplies. 

"If a submarine should enter a neutral port flying the 
mercantile flag His Majesty's Government are of opinion 
that it is the duty of the neutral authorities concerned to 
enquire closely into its right to fly that flag, to inspect the 
vessel thoroughly and, in the event of torpedoes, torpedo 
tubes or guns being found on board, to refuse to recognise 
it as a merchant ship. 

"In bringing the above to your serious consideration I 
have the honor to express the confident hope that the United 
States Government will feel able to agree in the views of 
His Majesty's Government and to treat submarine vessels of 
belligerent powers visiting United States port accordingly." 
(Foreign Relations, U. S., 1916, Sup., p. 765.) 

The Acting Secretary of State acknowledged the 
receipt of the communication and later indicated, 
that as to the Deutschland, he thought the British 
"were making entirely too much of the incident." 

On arrival in Baltimore, the German submarine 
Deutschland was found to be a merchant vessel 
with a cargo of dyestuffs. (Ibid., p. 768.) 



124 JURISDICTION AND POLAR AREAS 

The French Embassy on August 21, 1916, trans- 
mitted a memorandum to the Department of State 
which related to submarine navigation. Later 
identic memoranda were received from British, 
Russian, Japanese and Italian embassies and the 
Portuguese Legation. The memorandum was as 
follows : 

"In view of the development of submarine navigation, 
and by reason of the acts which, in present circumstances, 
may unfortunately be expected from enemy submarines, the 
Allied Governments consider it necessary, in order not only 
to safeguard their belligerent rights and the liberty of com- 
mercial navigation, but to avoid risks of dispute, to urge 
neutral governments to take effective measures, if they have 
not already done so, with a view to preventing belligerent 
submarine vessels, whatever the purpose to which they are 
put, from making use of neutral waters, roadsteads, and 
ports. 

"It may further be said that any place which provides a 
submarine warship far from its base with opportunity for 
rest and replenishment of its supplies thereby furnishes 
such an addition to its powers that the place becomes in 
fact, through the advantages which it gives, a base of naval 
operations. 

"In view of the state of affairs thus existing, the Allied 
Governments are of opinion that — 

"Submarine vessels should be excluded from the benefit 
of the rules hitherto recognized by the law of nations re- 
garding the admission of vessels of war or merchant vessels 
into neutral waters, roadsteads, or ports, and their sojourn 
in them. 

"Any belligerent submarine entering a neutral port should 
be detained there. 

"The Allied Governments take this opportunity to point 
out to neutral powers the grave danger incurred by neutral 
submarines in navigating regions frequented by belligerent 
submarines." (Ibid., p. 769.) 



REGULATION OF USE OF AIR J 25 

In concluding, a somewhat detailed reply, the 
Secretary of State said : 

"the Government of the United States reserves its liberty of 
action in all respects and will treat such vessels as, in its 
opinion, becomes the action of a power which may be said 
to have taken the first steps toward establishing the princi- 
ples of neutrality and which for over a century has main- 
tained those principles in the traditional spirit and with the 
high sense of impartiality in which they were conceived. 

u In order, however, that there should be no misunder- 
standing as to the attitude of the United States, the Govern- 
ment of the United States announces to the Allied powers 
that it holds it to be the duty of belligerent powers to dis- 
tinguish between submarines of neutral and belligerent 
nationality, and that responsibility for any conflict that may 
arise between belligerent warships and neutral submarines 
on account of the neglect of a belligerent to so distinguish 
between these classes of submarines must rest entirely upon 
the negligent power." (Ibid., p. 771.) 

An inquiry undertaken by the United States 
about this time showed that many neutral states 
reserved the right to treat private merchant sub- 
marines as other private merchant vessels would 
be treated. 

Resume. — (a) During the World War neutral 
states prohibited the use of the superjacent air by 
aircraft of all descriptions and in many cases shot 
down aircraft entering this jurisdiction. Subse- 
quent conventions, proposed or concluded, have 
usually affirmed the complete sovereignty of the 
subjacent state in the superjacent air not merely in 
the time of war but also in the time of peace. Many 
conventions, mutually permit and regulate in detail 
the entrance of foreign aircraft, the use of aero- 
dromes, the bounds between which entrance may 
take place and the routes to be followed, etc. 



126 JURISDICTION AND POLAR AREAS 

Conventions also specifically state that the pro- 
visions apply as well to the air above jurisdictional 
waters as above land. At The Hague in 1923, the 
Commission of Jurists discussed some of these 
propositions for extension of jurisdiction and 
reported : 

''Detailed consideration of the proposal led the majority 
of the delegations to think that the suggestion is not 
practicable. 

"It seems inevitable that great confusion would follow 
from any rule which laid down a different width for the 
territorial airspace from that recognised for territorial 
waters, more particularly in the case of neutral countries 
for whose benefit and protection the proposal is put for- 
ward. As an example it is only necessary to take article 42, 
which obliges a neutral State to endeavour to compel a 
belligerent military aircraft entering its jurisdiction to 
alight. If the aircraft entered the jurisdiction from over 
the high seas, it would do so at 10 miles from the coast, and 
if in compliance with neutral orders it forthwith alighted 
on the water, it would then be outside the neutral jurisdic- 
tion, and the neutral State could not intern the aircraft. 

"On principle it would seem that the jurisdiction in the 
airspace should be appurtenant to the territorial jurisdiction 
enjoyed beneath it, and that in the absence of a territorial 
jurisdiction beneath, there is no sound basis for jurisdiction 
in the air. 

"Furthermore, it is felt that the obligation to enforce 
respect for neutral rights throughout a 10-mile belt would 
impose an increased burden on neutral Powers without 
adequate compensating advantages." (1924 Naval War 
College, Int. Law Situations, p. 152.) 

There seems ample ground for prohibition of the 
use of air above the state jurisdiction but not for 
extension of authority beyond this limit. There 
is, however, no general agreement upon a maritime 
jurisdiction off the coast except for three miles, in 
spite of many claims to more extended jurisdiction. 



USE OF AIR 



127 



(6) A state may for reasons of its own estab- 
lish a radio station outside the jurisdiction of any 
other state and it would become responsible for its 
control and operation. As a neutral state in con- 
trol of the station, responsibility would extend to 
the prevention of the use of the station in any un- 
neutral manner, but not necessarily to the closing 
of the station. Such a station on the high sea 
might be for scientific or other purpose having no 
relation to the war and as such would not be under 
orders from a belligerent. 

(c) The right of a state to prevent or to regulate 
the movement of foreign aircraft is limited to the 
air within its jurisdiction which extends to the air 
above its land and maritime boundaries. Generally 
accepted maritime boundaries now extend at least 
to three miles from the low-water mark along the 
coast and three miles outside the limits of its bays. 
Whether the direction is toward the equator or 
toward the pole makes no difference — the jurisdic- 
tion extends seaward for three miles. 

(d) All aircraft have equal rights in flight over 
the high sea. In time of war, neutral aircraft must 
respect the rights of belligerents. The route over 
the poles may be found to have special advantages, 
or routes in some other regions may be found 
more practicable. These facts do not give to states 
in the neighborhood any extension of jurisdictional 
control though extension by conventional agree- 
ments might be expedient in some cases. 

(e) The right of innocent passage prevails both 
in time of war and in time of peace. 

The three-mile limit is usually measured outward 
from the low-water mark. 



128 JURISDICTION AND POLAR AREAS 

The Conference for the Codification of Interna- 
tional Law, The Hague, 1930, gave considerable at- 
tention to the determination of the low-water mark 
and the Report says : 

"The traditional expression 'low-water mark' may be in- 
terpreted in different ways and requires definition. In 
practice, different States employ different criteria to deter- 
mine this line. The two following criteria have been taken 
more particularly into consideration: first, the low-water 
mark indicated on the charts officially used by the Coastal 
State, and, secondly, the line of mean low-water spring 
tides. Preference was given to the first, as it appeared to 
be the more practical. Not every State, it is true, possesses 
official charts published by its own hydrographic services, 
but every Coastal State has some chart adopted as official 
by the State authorities, and a phrase has therefore been 
used which also includes these charts. 

"The divergencies due to the adoption of different criteria 
on the different charts are very slight and can be disre- 
garded. In order to guard against abuse, however, the 
proviso has been added that the line indicated on the chart 
must not depart appreciably from the more scientific 
criterion : the line of mean low-water spring tides. The 
term 'appreciably' is admittedly vague. Inasmuch, how- 
ever, as this proviso would only be of importance in a case 
which was clearly fraudulent, and as, moreover, absolute 
precision would be extremely difficult to attain, it is thought 
that it might be accepted. 

"If an elevation of the sea bed which is only uncovered 
at low tide is situated within the territorial sea off the main- 
land, or off an island, it is to be taken into consideration on 
the analogy of the North Sea Fisheries Convention of 1882 
in determining the base line of the territorial sea. 

"It must be understood that the provisions of the present 
Convention do not prejudge the questions which arise in 
regard to coasts which are ordinarily or perpetually ice- 
bound." (24 A. J. I. L., Sup. [1930], p. 248.) 



LOW- WATER MARK 129 

On a sandy beach the mark may shift at differ- 
ent seasons because of changing configuration of 
the shore line. 

Along a cliff the low-water mark may be rela- 
tively permanent. Similarly the low r -water mark 
may be relatively at the same line along permanent 
ice and it may be essential that the adjacent state 
exercise jurisdiction over this ice and the usual dis- 
tance over the adjacent sea in order that its rights 
may be secure. 

It must be admitted that the Conference for the 
Codification of International Law was unable to 
reach an agreement upon the width in miles of the 
belt of sea which should be regarded as under the 
jurisdiction of each state. A large number of states, 
however, accept the three-mile limit. It was men- 
tioned by the Hague Conference in its report to 
the League of Nations that — 

"In this connection it is suggested that the Council of the 
League should consider whether the various States should 
be invited to forward to the Secretary-General official in- 
formation, either in the form of charts or in some other 
form, regarding the base lines adopted by them for the 
measurement of their belts of territorial sea." (Ibid., 
p. 238.) 

In regard to passage this same report states, 

"Article 3. 'Passage' means navigation through the terri- 
torial sea for the purpose either of traversing that sea with- 
out entering inland waters, or of proceeding to inland 
waters, or of making for the high sea from inland waters. 

"Passage is not innocent when a vessel makes use of the 
territorial sea of a Coastal State for the purpose of doing 
any act prejudicial to the security, to the public policy or to 
the fiscal interests of that State. 

"Passage includes stopping and anchoring, but in so far 
as the same are incidental to ordinary navigation or are 



130 JURISDICTION AND POLAR AREAS 

rendered necessary by force majeure or by distress." (Ibid. y 
p. 240.) 

(/) During the World War submarine vessels 
were in many states prohibited entrance except 
upon the surface and this applied alike to all sub- 
marines. 

At the Conference for the Codification of Inter- 
national Law, The Hague, 1930, mention of vessels 
other than warships received consideration, and it 
was provided : 

"vessels other than warships. 

"Article 4. A Coastal State may put no obstacles in the 
way of the innocent passage of foreign vessels in the terri- 
torial sea. 

"Submarine vessels shall navigate on the surface. 

"Observations. 

"The expression 'vessels other than warships' includes not 
only merchant vessels, but also vessels such as yachts, cable 
ships, etc., if they are not vessels belonging to the naval 
forces of a State at the time of the passage." (24 A. J. I. L., 
Sup. [1930], p. 241.) 

It has been admitted that underwater navigation 
off ports might endanger other navigation and the 
enforcement of customs and other regulations 
would be difficult and in some cases impossible so 
that a requirement that foreign submarines navi- 
gate on the surface is deemed reasonable. 

SOLUTION 

(a) State M may lawfully prohibit the flight of 
aircraft above its territorial and maritime juris- 
diction. 1 



1 See note 1, supra, p. 70. 



SOLUTION 



131 



It is not lawful to interfere with the flight of air- 
craft outside this space. 

(6) State O may not lawfully order the radio 
station of state N to be closed though it may protest 
to state N against any violation of neutrality in its 
use. 

(c) State O may lawfully prohibit or regulate 
the entrance to its jurisdiction of any or all air- 
craft. 

(d) State O may not lawfully seize the aircraft 
of state M. 

(e) State P may not lawfully prohibit innocent 
passage though it may issue regulations essential 
to its own protection. 

(/) State N may lawfully prohibit the entrance 
or regulate the movements of vessels of war or 
regulate the movements of other vessels within its 
territorial waters when essential for its protection. 



APPENDIXES 

I. Treaty to avoid or prevent conflicts between the American 

States (Gondra treaty), May 3, 1923. 
II. General treaty of inter-American Arbitration, January 5, 1929. 

III. General convention of inter-American conciliation, January 5, 

1929. 

IV. Anti-war treaty of non-aggression and conciliation (Saavedra 

Lamas treaty), October 10, 1933. 
V. Additional protocol to the general convention of inter-American 

conciliation, December 26, 1933. 
VI. Convention for the maintenance, preservation, and reestablish- 
ment of peace, December 23, 1936. 
VII. Convention to coordinate, extend, and assure the fulfillment of 
the existing treaties between the American states, December 
23, 1936. 
VIII. Additional protocol relative to non-intervention, December 23, 
1936. 
IX. Joint resolution of Congress, May 1, 1937. 



Treaty to Avoid or Prevent Conflicts Between the 

American States 

(44 Stat. 2527) 

The Governments represented at the Fifth International 
Conference of American States, desiring to strengthen pro- 
gressively the principles of justice and of mutual respect 
which inspire the policy observed by them in their reciprocal 
relations, and to quicken in their peoples sentiments of con- 
cord and of loyal friendship which may contribute toward 
the consolidation of such relations, 

Confirm their most sincere desire to maintain an immut- 
able peace, not only between themselves but also with all 
the other nations of the earth; 

132 



APPENDIXES 133 

Condemn armed peace which increases military and naval 
forces beyond the necessities of domestic security and the 
sovereignty and independence of States, and, 

With the firm purpose of taking all measures which will 
avoid or prevent the conflicts which may eventually occur 
between them, agree to the present treaty, negotiated and 
concluded by the Plenipotentiary Delegates whose full 
powers were found to be in good and due form by the 
Conference : 

[Here follow the names of the Plenipotentiaries.] 

ARTICLE I 

All controversies which for any cause whatsoever may 
arise between two or more of the High Contracting Parties 
and which it has been impossible to settle through diplomatic 
channels, or to submit to arbitration in accordance with ex- 
isting treaties, shall be submitted for investigation and re- 
port to a Commission to be established in the manner pro- 
vided for in Article IV. The High Contracting Parties 
undertake, in case of disputes, not to begin mobilization or 
concentration of troops on the frontier of the other Party, 
nor to engage in any hostile acts or preparations for hos- 
tilities, from the time steps are taken to convene the Com- 
mission until the said Commission has rendered its report 
or until the expiration of the time provided for in Article 
VII. 

This provision shall not abrogate nor limit the obligations 
contained in treaties of arbitration in force between two or 
more of the High Contracting Parties, nor the obligations 
arising out of them. 

It is understood that in disputes arising between Nations 
which have no general treaties of arbitration, the investiga- 
tion shall not take place in questions affecting constitutional 
provisions, nor in questions already settled by other treaties. 

ARTICLE II 

The controversies referred to in Article I shall be sub- 
mitted to the Commission of Inquiry whenever it has been 
impossible to settle them through diplomatic negotiations 
or procedure or by submission to arbitration, or in cases in 



134 APPENDIXES 

which the circumstances of fact render all negotiation im- 
possible and there is imminent danger of an armed conflict 
between the Parties. Any one of the Governments directly 
interested in the investigation of the facts giving rise to the 
controversy may apply for the convocation of the Commis- 
sion of Inquiry and to this end it shall be necessary only to 
communicate officially this decision to the other Party and 
to one of the Permanent Commissions established bv Article 
III. 

ARTICLE III 

Two Commissions to be designated as permanent shall be 
established with their seats at Washington (United States 
of America) and at Montevideo (Uruguay). They shall 
be composed of the three American diplomatic agents long- 
est accredited in said capitals, and at the call of the Foreign 
Offices of those States they shall organize, appointing their 
respecting chairmen. Their functions shall be limited to re- 
ceiving from the interested Parties the request for a convoca- 
tion of the Commission of Inquiry, and to notifying the other 
Party thereof immediately. The Govermnent requesting 
the convocation shall appoint at the same time the persons 
who shall compose the Commission of Inquiry in represen- 
tation of that Government, and the other Party shall, like- 
wise, as soon as it receives notification, designate its members. 

The Party initiating the procedure established by this 
Treaty may address itself, in doing so, to the Permanent 
Commission which it considers most efficacious for a rapid 
organization of the Commission of Inquiry. Once the re- 
quest for convocation has been received and the Permanent 
Commission has made the respective notifications the ques- 
tion or controversy existing between the Parties and as to 
which no agreement has been reached, will ipso facto be 
suspended. 

ARTICLE IV 

The Commission of Inquiry shall be composed of five 
members, all nationals of American States, appointed in 
the following manner: each Government shall appoint two 
at the time of convocation, only one of whom may be a 
national of its country. The fifth shall be chosen by com- 



APPENDIXES 135 

mon accord by those already appointed and shall per- 
form the duties of President. However, a citizen of a na- 
tion already represented on the Commission may not be 
elected. Any of the Governments may refuse to accept the 
elected member, for reasons which it may reserve to itself, 
and in such event a substitute shall be appointed, with the 
mutual consent of the Parties, within thirty days following 
the notification of this refusal. In the failure of such agree- 
ment, the designation shall be made by the President of an 
American Republic not interested in the dispute, who shall 
be selected by lot by the Commissioners already appointed, 
from a list of not more than six American Presidents to be 
formed as follows: each Government party to the contro- 
versy, or if there are more than two Governments directly 
interested in the dispute, the Government or Governments 
on each side of the controversy, shall designate three Presi- 
dents of American States which maintain the same friendly 
relations with all the Parties to the dispute. 

Whenever there are more than two Governments directly 
interested in a controversy, and the interest of two or more 
of them are identical, the Government or Governments on 
each side of the controversy shall have the right to increase 
the number of their Commissioners, as far as it may be ne- 
cessary, so that both sides in the dispute may always have 
equal representation on the Commission. 

Once the Commission has been thus organized in the 
capital city, seat of the Permanent Commission which is- 
sued the order of convocation, it shall notify the respective 
Governments of the date of its inauguration, and it may 
then determine upon the place or places in which it will 
function, taking into account the greater facilities for in- 
vestigation. 

The Commission of Inquiry shall itself establish its rules 
of procedure. In this regard there are recommended for 
incorporation into said rules of procedure the provisions 
contained in Articles 9, 10, 11, 12, and 13 of the Convention 
signed in Washington, February, 1923, between the Govern- 
ment of the United States of America and the Governments 
of the Republics of Guatemala, El Salvador, Honduras, 
Nicaragua, and Costa Rica, which appear in the appendix 
to this Treaty. 



136 APPENDIXES 

Its decisions and final report shall be agreed to by the 
majority of its members. 

Each Party shall bear its own expenses and a propor- 
tionate share of the general expenses of the Commission. 

article v 

The Parties to the controversy shall furnish the ante- 
cedents and data necessary for the investigation. The Com- 
mission shall render its report within one year from the 
date of its inauguration. If it has been impossible to finish 
the investigation or draft the report within the period agreed 
upon, it may be extended six months beyond the period es- 
tablished, provided the Parties to the controversy are in 
agreement upon this point. 

ARTICLE VI 

The findings of the Commission will be considered as re- 
ports upon the disputes which were the subjects of the 
investigation, but will not have the value or force of judicial 
decisions or arbitral awards. 

ARTICLE VII 

Once the report is in possession of the Governments parties 
to the dispute, six months' time will be available for renewed 
negotiations in order to bring about a settlement of the 
difficulty in view of the findings of said report ; and if dur- 
ing this new term they should be unable to reach a friendly 
arrangement, the Parties in dispute shall recover entire 
liberty of action to proceed as their interests may dictate 
in the question dealt with in the investigation. 

ARTICLE VIII 

The present Treaty does not abrogate analogous conven- 
tions which may exist or may in the future exist between 
two or more of the High Contracting Parties ; neither does 
it partially abrogate any of their provisions, although they 
may provide special circumstances or conditions differing 
from those herein stipulated. 



APPENDIXES 137 

ARTICLE IX 

The present Treaty shall be ratified by the High Contract- 
ing Parties, in conformity with their respective constitu- 
tional procedures, and the ratifications shall be deposited 
in the Ministry for Foreign Affairs of the Republic of Chile, 
which will communicate them through diplomatic channels 
to the other Signatory Governments, and it shall enter into 
effect for the Contracting Parties in the order of ratification. 

The Treaty shall remain in force indefinitely ; any of the 
High Contracting Parties may denounce it and the denuncia- 
tion shall take effect as regards the Party denouncing one 
year after notification thereof has been given. 

Notice of the denunciation shall be sent to the Government 
of Chile, which will transmit it for appropriate action to 
the other Signatory Governments. 

article x 

The American States which have not been represented in 
the Fifth Conference may adhere to the present Treaty, 
transmitting the official documents setting forth such adher- 
ence to the Ministry for Foreign Affairs of Chile, which will 
communicate it to the other Contracting Parties. 

In Witness Whereof, the Plenipotentiaries and Delegates 
sign this Convention in Spanish, English, Portuguese, and 
French and affix the seal of the Fifth International Confer- 
ence of American States, in the city of Santiago, Chile, on 
the 3rd day of May in the year one thousand nine hundred 
and twenty three. 

This Convention shall be filed in the Ministry for Foreign 
Affairs of the Republic of Chile in order that certified copies 
thereof may be forwarded through diplomatic channels to 
each of the Signatory States. 



Appendix 



article I 



The Signatory Governments grant to all the Commissions 
which may be constituted the power to summon witnesses, 
to administer oaths and to receive evidence and testimony. 

93707—39 10 



238 APPENDIXES 

ARTICLE II 

During the investigation the Parties shall be heard and 
may have the right to be represented by one or more agents 
and counsel. 

ARTICLE III 

All members of the Commission shall take oath duly and 
faithfully to discharge their duties before the highest 
judicial authority of the place where it may meet. 

ARTICLE IV 

The Inquiry shall be conducted so that both Parties shall 
be heard. Consequently, the Commission shall notify each 
Party of the statements of facts submitted by the other, and 
shall fix periods of time in which to receive evidence. 

Once the Parties are notified, the Commission shall pro- 
ceed to the investigation, even though they fail to appear. 

ARTICLE V 

As soon as the Commission of Inquiry is organized, it shall 
at the request of any of the Parties to the dispute, have the 
right to fix the status in which the Parties must remain, in 
order that the situation may not be aggravated and matters 
may remain in statu quo pending the rendering of the report 
by the Commission. 



II 

General Treaty of Inter-American Arbitration 

(49 Stat. 3153) 

The Governments of Venezuela, Chile, Bolivia, Uruguay, 
Costa Kica, Peru, Honduras, Guatemala, Haiti, Ecuador, 
Colombia, Brazil, Panama, Paraguay, Nicaragua, Mexico, 
El Salvador, the Dominican Republic, Cuba, and the 
United States of America, represented at the Conference 
on Conciliation and Arbitration, assembled at Washing- 



APPENDIXES 



139 



ton, pursuant to the Resolution adopted on February 18, 
1928, by the Sixth International Conference of American 
States held in the City of Habana; 

In accordance with the solemn declarations made at said 
Conference to the effect that the American Republics con- 
demn war as an instrument of national policy and adopt 
obligatory arbitration as the means for the settlement of 
their international differences of a juridical character; 

Being convinced that the Republics of the New World, 
governed by the principles, institutions, and practices of 
democracy and bound furthermore by mutual interests, 
which are increasing each day, have not only the necessity 
but also the duty of avoiding the disturbance of conti- 
nental harmony whenever differences which are susceptible 
of judicial decision arise among them ; 

Conscious of the great moral and material benefits which 
peace offers to humanity and that the sentiment and opin- 
ion of America demand, without delay, the organization 
of an arbitral system which shall strengthen the permanent 
reign of justice and law; 

And animated by the purpose of giving conventional 
form to these postulates and aspirations with the minimum 
exceptions which they have considered indispensable to 
safeguard the independence and sovereignty of the States 
and in the most ample manner possible under present inter- 
national conditions, have resolved to effect the present 
treaty, and for that purpose have designated the Plenipo- 
tentiaries hereinafter named : 

[Here follow the names of Plenipotentiaries.] 

Who, after having deposited their full powers, found in 
good and due form by the Conference, have agreed upon the 
following : 

ARTICLE I 

The High Contracting Parties bind themselves to submit 
to arbitration all differences of an international character 
which have arisen or may arise between them by virtue of 
a claim of right made by one against the other under treaty 
or otherwise, which it has not been possible to adjust by di- 
plomacy and which are juridical in their nature by reason 



140 APPENDIXES 

of being susceptible of decision by the application of the 
principles of law. 

There shall be considered as included among the questions 
of juridical character: 

(a) The interpretation of a treaty; 

(b) Any question of international law; 

(c) The existence of any fact which, if established, would 
constitute a breach of an international obligation; 

(d) The nature and extent of the reparation to be made 
for the breach of an international obligation. 

The provisions of this treaty shall not preclude any of the 
Parties, before resorting to arbitration, from having recourse 
lo procedures of investigation and conciliation established in 
conventions then in force between them. 

ARTICLE II 

There are excepted from the stipulations of this treaty the 
following controversies : 

(a) Those which are within the domestic jurisdiction of 
any of the Parties to the dispute and are not controlled by 
international law; and 

(b) Those which affect the interest or refer to the action 
of a State not a Party to this treaty. 

ARTICLE III 

The arbitrator or tribunal who shall decide the contro- 
versy shall be designated by agreement of the Parties. 

In the absence of an agreement the following procedure 
shall be adopted: 

Each Party shall nominate two arbitrators, of whom only 
one may be a national of said Party or selected from the 
persons whom said Party has designated as members of the 
Permanent Court of Arbitration at The Hague. The other 
member may be of any other American nationality. These 
arbitrators shall in turn select a fifth arbitrator who shall 
be the president of the court. 

Should the arbitrators be unable to reach an agreement 
among themselves for the selection of a fifth American arbi- 
trator, or in lieu thereof, of another who is not, each Party 
shall designate a non -American member of the Permanent 



APPENDIXES 141 

Court of Arbitration at The Hague, and the two persons so 
designated shall select the fifth arbitrator, who may be of 
any nationality other than that of a Party to the dispute. 

ARTICLE IV 

The Parties to the dispute shall formulate by common 
accord, in each case, a special agreement which shall clearly 
define the particular subject-matter of the controversy, the 
seat of the court, the rules which will be observed in the 
proceedings, and the other conditions to which the Parties 
may agree. 

If an accord has not been reached with regard to the 
agreement within three months reckoned from the date of 
the installation of the court, the agreement shall be formu- 
lated by the court. 

article v 

In case of death, resignation or incapacity of one or more 
of the arbitrators the vacancy shall be filled in the same man- 
ner as the original appointment. 

ARTICLE VI 

When there are more than two States directly interested 
in the same controversy, and the interests of two or more of 
them are similar, the State or States who are on the same 
side of the question may increase the number of arbitrators 
on the court, provided that in all cases the Parties on each 
side of the controversy shall appoint an equal number of 
arbitrators. There shall also be a presiding arbitrator se- 
lected in the same manner as that provided in the last para- 
graph of Article 3, the Parties on each side of the contro- 
versy being regarded as a single Party for the purpose of 
making the designation therein described. 

ARTICLE VII 

The award, duly pronounced and notified to the Parties, 
settles the dispute definitively and without appeal. 

Differences which arise with regard to its interpretation 
or execution shall be submitted to the decision of the court 
which rendered the award. 



142 APPENDIXES 

ARTICLE VIII 

The reservations made by one of the High Contracting 
Parties shall have the effect that the other Contracting 
Parties are not bound with respect to the Party making the 
reservations except to the same extent as that expressed 
therein. 

ARTICLE IX 

The present treaty shall be ratified by the High Contract- 
ing Parties in conformity with their respective constitutional 
procedures. 

The original treaty and the instruments of ratification 
shall be deposited in the Department of State of the United 
States of America which shall give notice of the ratifications 
through diplomatic channels to the other signatory Govern- 
ments and the treaty shall enter into effect for the High 
Contracting Parties in the order that they deposit their 
ratifications. 

This treaty shall remain in force indefinitely, but it may 
be denounced by means of one year's previous notice at the 
expiration of which it shall cease to be in force as regards 
the Party denouncing the same, but shall remain in force as 
regards the other signatories. Notice of the denunciation 
shall be addressed to the Department of State of the United 
States of America which will transmit it for appropriate 
action to the other signatory Governments. 

Any American State not a signatory of this treaty may 
adhere to the same by transmitting the official instrument 
setting forth such adherence to the Department of State of 
the United States of America which will notify the other 
High Contracting Parties thereof in the manner heretofore 
mentioned. 

In witness whereof the above mentioned Plenipotentiaries 
have signed this treaty in English, Spanish, Portuguese, and 
French and hereunto affix their respective seals. 

Done at the city of Washington, on this fifth day of 
January, 1929. 



APPENDIXES 143 

[Translation of Reservations] 

The Delegation of Venezuela signs the present treaty of 
arbitration with the following reservations : 

First. There shall be excepted from this Treaty those mat- 
ters which, according to the Constitution or the laws of 
Venezuela, are under the jurisdiction of its courts; and es- 
pecially those matters relating to pecuniary claims of for- 
eigners. In such matters arbitration shall not be resorted 
to except when legal remedies having been exhausted by the 
claimant it shall appear that there has been a denial of 
justice. 

Second. There shall also be excepted those matters con- 
trolled by international agreements now in force. 

Chile does not accept obligatory arbitration for questions 
which have their origin in situations or acts antedating the 
present treaty nor does it accept obligatory arbitration for 
those questions which, being under the exclusive competency 
of the national jurisdiction, the interested parties claim the 
right to withdraw from the cognizance of the established ju- 
dicial authorities, unless said authorities decline to pass 
judgment on any action or exception which any natural or 
juridical foreign person may present to them in the form 
established by the laws of the country. 

The Delegation of Bolivia, in accordance with the doc- 
trine and policy invariably maintained by Bolivia in the field 
of international jurisprudence, gives full adherence to and 
signs the General Treaty of Inter-American Arbitration 
which the Republics of America are to sanction, formulat- 
ing the following express reservations: 

First. There may be excepted from the provisions of the 
present agreement, questions arising from acts occurring or 
conventions concluded before the said treaty goes into effect, 
as well as those which, in conformity with international law, 
are under the exclusive jurisdiction of the state. 

Second. It is also understood that, for the submission to 
arbitration of a territorial controversy or dispute, the zone 
to which the said arbitration is to apply must be previously 
determined in the arbitral agreement. 



144 APPENDIXES 

I vote in favor of the Treaty of Arbitration, with the res- 
ervation formulated by the Delegation of Uruguay at the 
Fifth Pan American Conference, favoring broad arbitra- 
tion; and with the understanding that arbitration will be 
resorted to only in case of denial of justice, when the na- 
tional tribunals have jurisdiction, according to the legisla- 
tion of their own country. 

Reservations of Costa Rica : 

(a) The obligations contracted under this Treaty do not 
annul, abrogate, or restrict the arbitration conventions 
which are now in force between Costa Rica and another or 
others of the high contracting parties and do not involve 
arbitration, disavowal, or renewed discussion of questions 
which may have already been settled by arbitral awards. 

(b) The obligations contracted under this Treaty do not 
involve the arbitration of judgments handed down by the 
courts of Costa Rica in civil cases which may be submitted 
to them and with regard to which the interested parties 
have recognized the jurisdiction of said courts. 

The Delegation of Honduras, in signing the present 
Treaty, formulates an express reservation making it a mat- 
ter of record that the provisions thereof shall not be appli- 
cable to pending international questions or controversies or 
to those which may arise in the future relative to acts prior 
to the date on which the said Treaty goes into effect. 

The Delegation of Guatemala makes the following reser- 
vations : 

1. In order to submit to arbitration any questions relat- 
ing to the boundaries of the nation, the approval of the 
Legislative Assembly must first be given, in each case, in 
conformity with the Constitution of the Republic. 

2. The provisions of the present Convention do not alter 
or modify the conventions and treaties previously entered 
into by the Republic of Guatemala. 

The Delegation of Ecuador, pursuant to instructions of 
its Government, reserves from the jurisdiction of the obliga- 
tory arbitration agreed upon in the present Treaty: 

1. Questions at present governed by conventions or trea- 
ties now in effect ; 



APPENDIXES 145 

2. Those which may arise from previous causes or may 
result from acts preceding the signature of this treaty ; 

3. Pecuniary claims of foreigners who may not have pre- 
viously exhausted all legal remedies before the courts of 
justice of the country, it being understood that such is the 
interpretation and the extent of the application which the 
Government of Ecuador has always given to the Buenos 
Aires Convention of August 11, 1910. 

The Delegation of Colombia signs the foregoing Conven- 
tion with the following two declarations or reservations : 

First. The obligations which the Republic of Colombia 
may contract thereby refer to the differences which may arise 
from acts subsequent to the ratification of the Convention; 

Second. Except in the case of a denial of justice, the 
arbitration provided for in this convention is not applicable 
to the questions which may have arisen or which may arise 
between a citizen, an association or a corporation of one 
of the parties and the other contracting state when the judges 
or courts of the latter state are, in accordance with its legis- 
lation, competent to settle the controversy. 

Reservation of the Delegation of Paraguay : 
I sign this treaty with the reservation that Paraguay ex- 
cludes from its application questions which directly or in- 
directly affect the integrity of the national territory and are 
not merely questions of frontiers or boundaries. 

Mexican Reservation: 

Mexico makes the reservation that differences, which fall 
under the jurisdiction of the courts, shall not form a subject 
of the procedure provided for by the Convention, except in 
case of denial of justice, and until after the judgment passed 
by the competent national authority has been placed in the 
class of res judicata. 

The Delegation of El Salvador to the Conference on Con- 
ciliation and Arbitration assembled in Washington accepts 
and signs the General Treaty of Inter-American Arbitration 
concluded this day by said Conference, with the following 
reservations or restrictions : 

1. After the words of paragraph 1 of Article I reading : 
"under treaty or otherwise", the following words are to be 



146 APPENDIXES 

added : "subsequent to the present Convention." The article 
continues without any other modification. 

2. Paragraph (a) of Article II is accepted by the Delega- 
tion without the final words which read: "and are not con- 
trolled by international law", which should be considered 
as eliminated. 

3. This Treaty does not include controversies or differ- 
ences with regard to points or questions which, according to 
the Political Constitution of El Salvador, must not be sub- 
mitted to arbitration, and 

4. Pecuniary claims against the nation shall be decided 
by its judges and courts, since they have jurisdiction there- 
of, and recourse shall be had to international arbitration 
only in the cases provided in the Constitution and laws 
of El Salvador, that is in cases of denial of justice or un- 
usual delay in the administration thereof. 

The Dominican Republic, in signing the General Treaty 
of Inter-American Arbitration, does so with the under- 
standing that controversies relating to questions which are 
under the jurisdiction of its courts shall not be referred 
to arbitral jurisdiction except in accordance with the prin- 
ciples of international law. 



Ill 

General Convention of Inter- Amebic an Conciliation 

46 Stat. 2209 

The Governments of Venezuela, Chile, Bolivia, Uruguay, 
Costa Rica, Peru, Honduras, Guatemala, Haiti, Ecuador, 
Colombia, Brazil, Panama, Paraguay, Nicaragua, Mexico, El 
Salvador, the Dominican Republic, Cuba, and the United 
States of America, represented at the Conference on Con- 
ciliation and Arbitration, assembled at Washington, pursu- 
ant to the Resolution adopted on February 18, 1928, by the 
Sixth International Conference of American States held in 
the City of Habana: 

Desiring to demonstrate that the condemnation of war as 
an instrument of national policy in their mutual relations, 



APPENDIXES 147 

set forth in the above mentioned resolution, constitutes one 
of the fundamental bases of inter- American relations ; 

Animated by the purpose of promoting, in every possible 
way, the development of international methods for the pacific 
settlement of differences between the States; 

Being convinced that the "Treaty to Avoid or Prevent 
Conflicts between the American States," signed at Santiago 
cle Chile, May 3, 1923, constitutes a notable achievement in 
inter- American relations, which it is necessary to maintain 
by giving additional prestige and strength to the action of 
the commissions established by Articles III and IV of the 
aforementioned treaty ; 

Acknowledging the need of giving conventional form to 
these purposes have agreed to enter into the present Con- 
vention, for which purpose they have appointed Plenipoten- 
tiaries as follows: 

[Here follow names of the Plenipotentiaries.] 

Who, after having deposited their full powers, which were 
found to be in good and due form by the Conference, have 
agreed as follows: 

ARTICLE I 

The High Contracting Parties agree to submit to the pro- 
cedure of conciliation established by this convention all con- 
troversies of any kind which have arisen or may arise be- 
tween them for any reason and which it may not have been 
possible to settle through diplomatic channels. 

article II 

The Commission of Inquiry to be established pursuant to 
the provisions of Article IV of the Treaty signed in San- 
tiago de Chile on May 3, 1923, shall likewise have the char- 
acter of Commission of Conciliation. 

ARTICLE III 

The Permanent Commissions which have been established 
by virtue of Article III of the Treaty of Santiago de Chile 
of May 3, 1923, shall be bound to exercise conciliatory func- 
tions, either on their own motion when it appears that there 



148 APPENDIXES 

is a prospect of disturbance of peaceful relations, or at the 
request of a Party to the dispute, until the Commission re- 
ferred to in the preceding article is organized. 

ARTICLE IV 

The conciliatory functions of the Commission described in 
Article II shall be exercised on the occasions hereinafter 
set forth: 

(1) The Commission shall be at liberty to begin its work 
with an effort to conciliate the differences submitted to its 
examination with a view to arriving at a settlement between 
the Parties. 

(2) Likewise the same Commission shall be at liberty to 
endeavor to conciliate the Parties at any time which in the 
opinion of the Commission may be considered to be favor- 
able in the course of the investigation and within the period 
of time fixed therefor in Article V of the Treaty of Santiago 
de Chile of May 3, 1923. 

(3) Finally, the Commission shall be bound to carry out 
its conciliatory function within the period of six months 
which is referred to in Article VII of the Treaty of Santiago 
de Chile of May 3, 1923. 

The Parties to the controversy may, however, extend this 
time, if they so agree and notify the Commission in due 
time. 

ARTICLE V 

The present convention does not preclude the High Con- 
tracting Parties, or one or more of them, from tendering 
their good offices or their mediation, jointly or severally, on 
their own motion or at the request of one or more of the 
Parties to the controversy; but the High Contracting Par- 
ties agree not to make use of those means of pacific settle- 
ment from the moment that the Commission described in 
Article II is organized until the final act referred to in 
Article XI of this convention is signed. 

ARTICLE VI 

The function of the Commission, as an organ of concilia- 
tion, in all cases specified in Article II of this convention r 
is to procure the conciliation of the differences subject to its 



APPENDIXES 149 

examination by endeavoring to effect a settlement between 
the Parties. 

When the Commission finds itself to be within the case 
foreseen in paragraph 3 of Article IV of this convention, 
it shall undertake a conscientious and impartial examination 
of the questions which are the subject of the controversy, 
shall set forth in a report the results of its proceedings, and 
shall propose to the Parties the bases of a settlement for the 
equitable solution of the controversy. 

ARTICLE VII 

Except when the Parties agree otherwise, the decisions 
and recommendations of any Commission of Conciliation 
shall be made by a majority vote. 

ARTICLE VIII 

The Commission described in Article 2 of this convention 
shall establish its rules of procedure. In the absence of 
agreement to the contrary, the procedure indicated in Ar- 
ticle IV of the Treaty of Santiago de Chile of May 3, 1923, 
shall be followed. 

Each party shall bear its own expenses and a propor- 
tionate share of the general expenses of the Commission. 

ARTICLE IX 

The report and the recommendations of the Commission, 
insofar as it may be acting as an organ of conciliation, shall 
not have the character of a decision nor an arbitral award, 
and shall not be binding on the Parties either as regards the 
exposition or interpretation of the facts or as regards 
questions of law. 

ARTICLE X 

As soon as possible after the termination of its labors 
the Commission shall transmit to the Parties a certified copy 
of the report and of the bases of settlement which it may 
propose. 

The Commission in transmitting the report and the 
recommendations to the Parties shall fix a period of time, 



150 APPENDIXES 

which shall not exceed six months, within which the 
Parties shall pass upon the bases of settlement above re- 
ferred to. 

ARTICLE XI 

Once the period of time fixed by the Commission for 
the Parties to make their decisions has expired, the Com- 
mission shall set forth in a final act the decision of the 
Parties, and if the conciliation hac been effected, the terms 
of the settlement. 

ARTICLE XII 

The obligations set forth in the second sentence of the 
first paragraph of Article I of the Treaty of Santiago 
de Chile of May 3, 1923, shall extend to the time when the 
final act referred to in the preceding article is signed. 

ARTICLE XIII 

Once the procedure of conciliation is under way it shall 
be interrupted only by a direct settlement between the 
Parties or by their agreement to accept absolutely the de- 
cision ex aequo et bono of an American Chief of State or 
to submit the controversy to arbitration or to an interna- 
tional court. 

ARTICLE XIV 

Whenever for any reason the Treaty of Santiago de 
Chile of May 3, 1923, does not apply, the Commission re- 
ferred to in Article II of this convention shall be organ- 
ized to the end that it may exercise the conciliatory func- 
tions stipulated in this convention; the Commisison shall 
be organized in the same manner as that prescribed in 
Article IV of said treaty. 

In such cases, the Commission thus organized shall be 
governed in its operation by the provisions, relative to 
conciliation, of this convention. 

ARTICLE XV 

The provisions of the preceding article shall also apply 
with regard to the Permanent Commissions constituted by 



APPENDIXES 151 

the aforementioned Treaty of Santiago de Chile, to the 
end that said Commissions may exercise the conciliatory 
functions prescribed in Article III of this convention. 

ARTICLE XVI 

The present convention shall be ratified by the High 
Contracting Parties in conformity with their respective 
constitutional procedures, provided that they have pre- 
viously ratified the Treaty of Santiago, Chile, of May 3, 
1923. " 

The original convention and the instruments of ratifica- 
tion shall be deposited in the Ministry for Foreign Affairs 
of the Republic of Chile which shall give notice of the 
ratifications through diplomatic channels to the other signa- 
tory Governments and the convention shall enter into ef- 
fect for the High Contracting Parties in the order that they 
deposit their ratifications. 

This convention shall remain in force indefinitely, but 
it may be denounced by means of notice given one year 
in advance at the expiration of which it shall cease to be 
in force as regards the Party denouncing the same, but 
shall remain in force as regard the other signatories. 
Notice of the denunciation shall be addressed to the Min- 
istry for Foreign Affairs of the Republic of Chile which 
will transmit it for appropriate action to the other signatory 
Governments. 

Any American State not a signatory of this convention 
may adhere to the same by transmitting the official instru- 
ment setting forth such adherence, to the Ministry for For- 
eign Affairs of the Republic of Chile which will notify the 
other High Contracting Parties thereof in the manner here- 
tofore mentioned. 

In witness whereof the aboved mentioned Plenipoten- 
tiaries have signed this convention in English, Spanish, 
Portugese, and French and hereunto affix their respective 
seals. 

Done at the city of Washington, on this fifth day of 
January 1929. 



1 52 APPENDIXES 

IV 

[Translation] 
Anti-War Treaty ox Non-Aggression and Conciliation 

(49 Stat. 3363, 3375) 

The states designated below, in the desire to contribute to 
the consolidation of peace, and to express their adherence to 
the efforts made by all civilized nations to promote the spirit 
of universal harmony; 

To the end of condemning wars of aggression and terri- 
torial acquisitions that may be obtained by armed conquest, 
making them impossible and establishing their invalidity 
through the positive provisions of this treaty, and in order 
to replace them with pacific solutions based on lofty con- 
cepts of justice and equity; 

Convinced that one of the most effective means of assuring 
the moral and material benefits which peace offers to the 
world, is the organization of a permanent system of concilia- 
tion for international disputes, to be applied immediately 
on the violation of the principles mentioned ; 

Have decided to put these aims of non-aggression and 
concord in conventional form, by concluding the present 
treaty, to which end they have appointed the undersigned 
plenipotentiaries, who, having exhibited their respective full 
powers, found to be in good and due form, have agreed upon 
the following: 

ARTICLE I 

The High Contracting Parties solemnly declare that they 
condemn wars of aggression in their mutual relations or 
(hose with other states, and that the settlement of disputes 
or controversies of any kind that may arise among them 
shall be effected only by the pacific means which have the 
sanction of international law. 

ARTICLE II 

They declare that as between the High Contracting Par- 
lies, territorial questions must not be settled by violence, and 
that they will not recognize any territorial arrangement 



APPENDIXES ^53 

which is not obtained by pacific means, nor the validity of 
the occupation or acquisition of territories that may be 
brought about by force of arms. 

ARTICLE III 

In case of non-compliance by any state engaged in a dis- 
pute, with the obligations contained in the foregoing articles, 
the contracting states undertake to make every effort for the 
maintenance of peace. To that end they will adopt in their 
character as neutrals a common and solidary attitude ; they 
will exercise the political, juridical, or economic means au- 
thorized by international law ; they will bring the influence 
of public opinion to bear but will in no case resort to inter- 
vention either diplomatic or armed; subject to the attitude 
that may be incumbent on them by virtue of other collective 
treaties to which such states are signatories. 

ARTICLE IV 

The High Contracting Parties obligate themselves to sub- 
mit to the conciliation procedure established by this treaty, 
the disputes specially mentioned and any others that may 
arise in their reciprocal relations, without further limitations 
than those enumerated in the following article, in all con- 
troversies which it has not been possible to settle by diplo- 
matic means within a reasonable period of time. 

ARTICLE V 

The High Contracting Parties and the states which may 
in the future adhere to this treaty may not formulate, at 
the time of signature, ratification, or adherence, other limita- 
tions to the conciliation procedure than those which are indi- 
cated below : 

(a) Differences for the solution of which treaties, conven- 
tions, pacts, or pacific agreements of any kind whatever may 
have been concluded, which in no case shall be considered as 
annulled by this agreement, but supplemented thereby in 
so far as they tend to assure peace ; as well as the quetsions 
or matters settled by previous treaties ; 

93707—39 11 



154 APPENDIXES 

(b) Disputes which the parties prefer to solve by direct 
settlement or submit by common agreement to an arbitral 
or judicial solution; 

(c) Questions which international law leaves to the exclu- 
sive competence of each state, under its constitutional system, 
for which reason the parties may object to their being sub- 
mitted to the conciliation procedure before the national or 
local jurisdiction has decided definitely; except in the case 
of manifest denial or delay of justice, in which case the 
conciliation procedure shall be initiated within a year at the 
latest; 

(d) Matters which affect constitutional precepts of the 
parties to the controversy. In case of doubt, each party shall 
obtain the reasoned opinion of its respective tribunal or 
supreme court of justice, if the latter should be invested 
with such powers. 

The High Contracting Parties may communicate, at any 
time and in the manner provided for by Article XV, an 
instrument stating that they have abandoned wholly or in 
part the limitations established by them in the conciliation 
procedure. 

The effect of the limitations formulated by one of the con- 
tracting parties shall be that the other parties shall not con- 
sider themselves obligated in regard to that party save in 
the measure of the exceptions established. 

ARTICLE VI 

In the absence of a permanent conciliation commission or 
of some other international organization charged with this 
mission by virtue of previous treaties in effect, the High Con- 
tracting Parties undertake to submit their differences to the 
examination and investigation of a conciliation commission 
which shall be formed as follows, unless there is an agree- 
ment to the contrary of the parties in each case. 

The Conciliation Commission shall consist of five members. 
Each party to the controversy shall designate a member who 
may be chosen by it from among its own nationals. The 
three remaining members shall be designated by common 
agreement by the parties from among the nationals of third 
Powers, who must be of different nationalities, must not have 



APPENDIXES ^55 

(heir customary residence in the territory of the interested 
parties nor be in the service of any of them. The parties 
shall choose the president of the Conciliation Commission 
from among the said three members. 

If they cannot arrive at an agreement with regard to such 
designations, they may entrust the selection thereof to a 
third power or to some other existing international organ- 
ism. If the candidates so designated are rejected by the 
parties or by any one of them, each party shall present a list 
of candidates equal in number to that of the members to be 
selected, and the names of those to sit on the Conciliation 
Commission shall be determined by lot. 

ARTICLE VII 

The tribunals or supreme courts of justice which, in ac- 
cordance with the domestic legislation of each state, may be 
competent to interpret, in the last or the sole instance and 
in matters under their respective jurisdiction, the constitu- 
tion, treaties, or the general principles of the law of na- 
tions, may be designated preferentially by the High Con- 
tracting Parties to discharge the duties entrusted by the 
present treaty to the Conciliation Commission. In this case 
the tribunal or court may be constituted by the whole bench 
or may designate some of its members to proceed alone or 
by forming a mixed commission with members of other 
courts or tribunals, as may be agreed upon by common ac- 
cord between the parties to the dispute. 

ARTICLE VIII 

The Conciliation Commission shall establish its own rules 
of procedure, which shall provide in all cases for hearing 
both sides. 

The parties to the controversy may furnish and the Com- 
mission may require from them all the antecedents and in- 
formation necessary. The parties may have themselves 
represented by delegates and assisted by advisers or experts, 
and also present evidence of all kinds. 



156 APPENDIXES 

ARTICLE IX 

The labors and deliberations of the Conciliation Com- 
mission shall not be made public except by a decision of its 
own to that effect, with the assent of the parties. 

In the absence of any stipulations to the contrary, the de- 
cisions of the Commission shall be made by a majority vote, 
but the Commission may not pronounce judgment on the 
substance of the case except in the presence of all its 
members. 

ARTICLE X 

It is the duty of the Commission to secure the conciliatory 
settlement of the disputes submitted to its consideration. 

After an impartial study of the questions in dispute, it 
shall set forth in a report the outcome of its work and shall 
propose to the parties bases of settlement by means of a just 
and equitable solution. 

The report of the Commission shall in no case have the 
character of a final decision or arbitral award either with 
respect to the exposition or the interpretation of the facts, 
or with regard to the considerations or conclusions of law. 

ARTICLE XI 

The Conciliation Commission must present its report 
within one year counting from its first meeting unless the 
parties should decide by common agreement to shorten or 
extend this period. 

The conciliation procedure having been once begun may 
be interrupted only by a direct settlement between the parties 
or by their subsequent decision to submit the dispute by 
common accord to arbitration or to international justice. 

ARTICLE XII 

In communicating its report to the parties, the Concilia- 
tion Commission shall fix for them a period which shall not 
exceed six months, within which they must decide as to the 
bases of the settlement it has proposed. On the expiration 
of this term, the Commission shall record in a final act the 
decision of the parties. 



APPENDIXES 



157 



Biis period having expired without acceptance of the 
settlement by the parties, or the adoption by common ac- 
cord of another friendly solution, the parties to the dispute 
shall regain their freedom of action to proceed as they may 
see fit within the limitations flowing from Articles I and II 
of this treaty. 

ARTICLE XIII 

From the initiation of the conciliatory procedure until 
the expiration of the period fixed by the Commission for 
the parties to make a decision, they must abstain from any 
measure prejudicial to the execution of the agreement that 
may be proposed by the Commission and, in general, from 
any act capable of aggravating or prolonging the con- 
troversy. 

ARTICLE XIV 

During the conciliation procedure the members of the 
Commission shall receive honoraria the amount of which 
shall be established by common agreement by the parties to 
the controversy. Each of them shall bear its own expenses, 
and a moiety of the joint expenses or honoraria. 

ARTICLE XV 

The present treaty shall be ratified by the High Con- 
tracting Parties as soon as possible, in accordance with their 
respective constitutional procedures. 

The original treaty and the instruments of ratification 
shall be deposited in the Ministry of Foreign Kelations and 
Worship of the Argentine Republic, which shall communi- 
cate the ratifications to the other signatory states. The 
treaty shall go into effect between the High Contracting 
Parties 30 days after the deposit of the respective ratifica- 
tions, and in the order in which they are effected. 

ARTICLE XVI 

This treaty shall remain open to the adherence of all 
states. 



158 APPENDIXES 

Adherence shall be effected by the deposit of the respective 
instrument in the Ministry of Foreign Relations and Wor- 
ship of the Argentine Republic, which shall give notice 
thereof to the other interested states. 

ARTICLE XVII 

The present treaty is concluded for an indefinite time, 
but may be denounced by one year's notice, on the expiration 
of which the effects thereof shall cease for the denouncing 
state, and remain in force for the other states which are 
parties thereto, by signature or adherence. 

The denunciation shall be addressed to the Ministry of 
Foreign Relations and Worship of the Argentine Republic, 
which shall transmit it to the other interested states. 

In witness whereof, the respective plenipotentiaries sign 
the present treaty in one copy, in the Spanish and Portuguese 
languages, and affix their seals thereto at Rio de Janeiro, 
D. F., on the tenth day of the month of October one thousand 
nine hundred thirty-three. 

[Here follow the signatures of the plenipotentiaries of 
Argentina, Brazil, Chile (with reservations), Mexico, Para- 
guay, and Uruguay.] 



Additional Protocol to the General Convention of 
Inter- American Conciliation 

(49 Stat. 3188) 

The High Contracting Parties of the General Convention 
of Inter- American Conciliation of the 5th of January, 1929, 
convinced of the undeniable advantage of giving a perma- 
nent character to the Commissions of Investigation and 
Conciliation to which Article II of said Convention refers, 
agree to add to the aforementioned Convention the follow- 
ing and additional Protocol. 



APPENDIXES 1 59 

ARTICLE I 

Each country signatory to the Treaty signed in Santiago, 
Chile, the 3rd of May, 1923, shall name, as soon as possible, 
by means of a bilateral agreement which shall be recorded 
in a simple exchange of notes with each one of the other 
signatories of the aforementioned Treaty, those members 
of the various commissions provided for in Article IV of 
said Treaty. The commissions so named shall have a per- 
manent character and shall be called Commissions of In- 
vestigation and Conciliation. 

ARTICLE II 

Any of the contracting parties may replace the members 
which have been designated, whether they be nationals or 
foreigners; but, at the same time, the substitute shall be 
named. In case the substitution is not made, the replace- 
ment shall not be effective. 

article in 

The commissions organized in fulfillment of Article III 
of the aforementioned Treaty of Santiago, Chile, shall be 
called Permanent Diplomatic Commissions of Investigation 
and Conciliation. 

ARTICLE IV 

To secure the immediate organization of the commissions 
mentioned in the first Article hereof, the High Contracting 
Parties engage themselves to notify the Pan American 
Union at the time of the deposit of the ratification of the 
present Additional Protocol in the Ministry of Foreign 
Kelations of the Kepublic of Chile, the names of the two 
members whose designation they are empowered to make by 
Article IV of the Convention of Santiago, Chile, and said 
members, so named, shall constitute the members of the 
Commissions which are to be organized with bilateral char- 
acter in accordance with this Protocol. 



150 APPENDIXES 

ARTICLE V 

It shall be left to the Governing Board of the Pan Amer- 
ican Union to initiate measures for bringing about the nom- 
ination of the fifth member of each Commission of Investi- 
gation and Conciliation in accordance with the stipulation 
established in Article IV of the Convention of Santiago, 
Chile. 

ARTICLE VI 

In view of the character which this Protocol has as an 
addition to the Convention of Conciliation of Washington, 
of January 5, 1929, the provision of Article XVI of said 
Convention shall be applied thereto. 

In witness whereof, the Plenipotentiaries hereinafter in- 
dicated, have set their hands and their seals to this Addi- 
tional Protocol in English, and Spanish, in the city of Mon- 
tevideo, Republic of Uruguay, this twenty-sixth day of the 
month of December in the year nineteen hundred and 
thirty-three. 



VI 

Convention for the Maintenance, Preservation, and 
Reestablishment of Peace 

(U. S. Treaty Series, No. 922) 

The Governments represented at the Inter- American Con- 
ference for the Maintenance of Peace, Considering: 

That according to the statement of His Excellency Frank- 
lin D. Roosevelt, President of the United States, to whose 
lofty ideals the meeting of this Conference is due, the meas- 
ures to be adopted by it "would advance the cause of world 
peace, inasmuch as the agreements which might be reached 
would supplement and reinforce the efforts of the League 
of Nations and of all other existing or future peace agencies 
in seeking to prevent war"; 

That every war or threat of war affects directly or in- 
directly all civilized peoples and endangers the great prin- 
ciples of liberty and justice which constitute the American 
ideal and the standard of American international policy ; 



APPENDIXES \Q\ 

That the Treaty of Paris of 1928 (Kellogg-Brknd Pact) 
has been accepted by almost all the civilized states, whether 
or not members of other peace organizations, and that the 
Treaty of Non-Aggression and Conciliation of 1933 
(Saavedra Lamas Pact signed at Kio de Janeiro) has the 
approval of the twenty-one American Republics represented 
in this Conference. 

Have resolved to give contractual form to these purposes 
by concluding the present Convention, to which end they 
have appointed the Plenipotentiaries hereafter mentioned : 

[Here follow the names of the Plenipotentiaries.] 

Who, after having deposited their full powers, found to 
be in good and due form, have agreed as follows: 

ARTICLE I 

In the event that the peace of the American Republics 
is menaced, and in order to coordinate efforts to prevent 
war, any of the Governments of the American Republics sig- 
natory to the Treaty of Paris of 1928 or to the Treaty of 
Non- Aggression and Conciliation of 1933, or to both, 
whether or not a member of other peace organizations shall 
consult with the other Governments of the American Re- 
publics which, in such event, shall consult together for 
the purpose of finding and adopting methods of peaceful 
cooperation. 

ARTICLE II 

In the event of war, or a virtual state of war between 
American States, the Governments of the American Re- 
publics represented at this Conference shall undertake 
without delay the necessary mutual consultations, in order 
to exchange views and to seek, within the obligations result- 
ing from the pacts above mentioned and from the standards 
of international morality, a method of peaceful collabo- 
ration; and, in the event of an international war out- 
side America which might menace the peace of the Ameri- 
can Republics, such consultation shall also take place to 
determine the proper time and manner in which the sig- 
natory States, if they so desire, may eventually cooperate 
in some action tending to preserve the peace of the Ameri- 
can Continent. 



Ig2 APPENDIXES 

ARTICLE III 

It is agreed that any question regarding the interpreta- 
tion of the present Convention, which it has not been 
possible to settle through diplomatic channels, shall be sub- 
mitted to the procedure of conciliation provided by exist- 
ing agreements, or to arbitration or to judicial settlement. 

article rv 

The present Convention shall be ratified by the High 
Contracting Parties in conformity with their respective con- 
stitutional procedures. The original convention shall be 
deposited in the Ministry of Foreign Affairs of the Argen- 
tine Republic, which shall communicate the ratifications to 
the other signatories. The Convention shall come into effect 
between the High Contracting Parties in the order in which 
they have deposited their ratifications. 

ARTICLE V 

The present Convention shall remain in effect indefinitely, 
but may be denounced by means of one year's notice, after 
the expiration of which period the Convention shall cease 
in its effects as regards the party which denounces it but 
shall remain in effect for the remaining signatory States. 
Denunciations shall be addressed to the Government of the 
Argentine Republic, which shall transmit them to the other 
contracting States. 

In witness whereof, the above mentioned Plenipotentiaries 
sign the present Convention in English, Spanish, Portu- 
guese, and French and hereunto affix their respective seals, 
at the City of Buenos Aires, Capital of the Argentine Re- 
public, on the twenty-third day of the month of December, 
nineteen hundred and thirty-six. 

Reservation of Paraguay 

With the express and definite reservation in respect to its 
peculiar international position as regards the League of 
Nations. 



APPENDIXES iQg 

VII 

Convention to Coordinate, Extend, and Assure the Ful- 
fillment of the Existing Treaties Between the Amer- 
ican States 

(Treaty Series, No. 926) 

The Governments represented at the Inter-American Con- 
ference for the Maintenance of Peace, 

Animated by a desire to promote the maintenance of gen- 
eral peace in their mutual relations ; 

Appreciating the advantages derived and to be derived 
from the various agreements already entered into condemn- 
ing war and providing methods for the pacific settlement of 
international disputes ; 

Recognizing the need for placing the greatest restrictions 
upon resort to war ; and 

Believing that for this purpose it is desirable to conclude 
a new convention to coordinate, extend, and assure the ful- 
fillment of existing agreements, have appointed Plenipoten- 
tiaries as follows : 

[Here follow the names of the Plenipotentiaries.] 

Who, after having deposited their full powers, found to 
be in good and due form, have agreed upon the following 
provisions : 

ARTICLE I 

Taking into consideration that, by the Treaty to Avoid 
and Prevent Conflicts between the American States, signed 
at Santiago, May 3, 1923 (known as the Gondra Treaty), 
the High Contracting Parties agree that all controversies 
which it has been impossible to settle through diplomatic 
channels or to submit to arbitration in accordance with ex- 
isting treaties shall be submitted for investigation and re- 
port to a Commission of Inquiry; 

That by the Treaty for the Renunciation of War, signed at 
Paris on August 28, 1928 (known as the Kellogg-Briand 
Pact, or Pact of Paris), the High Contracting Parties sol- 
emnly declare in the names of their respective peoples that 
they condemn recourse to war for the solution of interna- 



264 APPENDIXES 

tional controversies and renounce it as an instrument of 
national policy in their relations with one another ; 

That by the General Convention of Inter- American Con- 
ciliation, signed at Washington, January 5, 1929, the High 
Contracting Parties agree to submit to the procedure of con- 
ciliation all controversies between them, which it may not 
have been possible to settle through diplomatic channels, and 
to establish a "Commission of Conciliation" to carry out the 
obligations assumed in the Convention; 

That by the General Treaty of Inter- American Arbitra- 
tion, signed at Washington, January 5, 1929, the High Con- 
tracting Parties bind themselves to submit to arbitration, 
subject to certain exceptions, all differences between them of 
an international character, which it has not been possible 
to adjust by diplomacy and which are juridical in their na- 
ture by reason of being susceptible of decision by the appli- 
cation of the principles of law, and, moreover, to create a 
procedure of arbitration to be followed ; and 

That by the Treaty of Non- Aggression and Conciliation, 
signed at Rio de Janeiro, October 10, 1933 (known as the 
Saavedra Lamas Treaty), the High Contracting Parties 
solemnly declare that they condemn wars of aggression in 
their mutual relations or in those with other States and that 
the settlement of disputes or controversies between them 
shall be effected only by pacific means which have the sanc- 
tion of international law, and also declare that as between 
them territorial questions must not be settled by violence, 
and that they will not recognize any territorial arrange- 
ment not obtained by pacific means, nor the validity of the 
occupation or acquisition of territories brought about by 
force of arms, and, moreover, in a case of non-compliance 
with these obligations, the contracting States undertake to 
adopt, in their character as neutrals, a common and solidary 
attitude and to exercise the political, juridical, or economic 
means authorized by international law, and to bring the in- 
fluence of public opinion to bear, without, however, resort- 
ing to intervention, either diplomatic or armed, subject 
nevertheless to the attitude that may be incumbent upon 
them by virtue of their collective treaties ; and, furthermore, 
undertake to create a procedure of conciliation; 



APPENDIXES 165 

The High Contracting Parties reaffirm the obligations en- 
tered into to settle, by pacific means, controversies of an 
international character that may arise between them. 

ARTICLE II 

The High Contracting Parties, convinced of the necessity 
for the cooperation and consultation provided for in the 
Convention for the Maintenance, Preservation, and Reestab- 
lishment of Peace signed by them on this same day, agree 
that in all matters which affect peace on the Continent, such 
consultation and cooperation shall have as their object to 
assist, through the tender of friendly good offices and of 
mediation, the fulfillment by the American Republics of 
existing obligations for pacific settlement, and to take coun- 
sel together, with full recognition of their juridical equality r 
as sovereign and independent States, and of their general 
right to individual liberty of action, when an emergency 
arises which affects their common interest in the maintenance 
of peace. 

article ni 

In case of threat of war, the High Contracting Parties 
shall apply the provisions contained in Articles I and II of 
the Convention for the Maintenance, Preservation, and Rees- 
tablishment of Peace, above referred to, it being understood 
that, while such consultation is in progress and for a period 
of not more than six months, the parties in dispute will not 
have recourse to hostilities or take any military action 
whatever. 

ARTICLE IV 

The High Contracting Parties further agree that, in the 
event of a dispute between two or more of them, they will 
seek to settle it in a spirit of mutual regard for their re- 
spective rights, having recourse for this purpose to direct 
diplomatic negotiation or to the alternative procedures of 
mediation, commissions of inquiry, commissions of concilia- 
tion, tribunals of arbitration, and courts of justice, as pro- 
vided in the treaties to which they may be parties ; and they 
also agree that, should it be impossible to settle the dispute 
by diplomatic negotiation and should the States in dispute 



166 APPENDIXES 

have recourse to the other procedures provided in the present 
Article, they will report this fact and the progress of the 
negotiations to the other signatory States. These provisions 
do not affect controversies already submitted to a diplomatic 
or juridical procedure by virtue of special agreements. 

article v 

The High Contracting Parties agree that, in the event that 
the methods provided by the present Convention or by 
agreements previously concluded should fail to bring about a 
pacific settlement of differences that may arise between any 
two or more of them, and hostilities should break out between 
two or more of them, they shall be governed by the follow- 
ing stipulations: 

(a) They shall, in accordance with the terms of the Treaty 
of Non- Aggression and Conciliation (Saavedra Lamas 
Treaty) adopt in their character as neutrals a common and 
solidary attitude; and shall consult immediately with one 
another, and take cognizance of the outbreak of hostilities in 
order to determine, either jointly or individually, whether 
such hostilities shall be regarded as constituting a state of 
war so as to call into effect the provisions of the present 
Convention. 

(b) It is understood that, in regard to the question 
whether hostilities actually in progress constitute a state of 
war, each of the High Contracting Parties shall reach a 
prompt decision. In any event, should hostilities be actually 
in progress between two or more of the Contracting Parties, 
or between two or more signatory States not at the time 
parties to this Convention by reason of failure to ratify it, 
each Contracting Party shall take notice of the situation and 
shall adopt such an attitude as would be consistent with other 
multilateral treaties to which it is a party or in accordance 
with its municipal legislation. Such action shall not be 
deemed an unfriendly act on the part of any State affected 
thereby. 

ARTICLE VI 

Without prejudice to the universal principles of neutrality 
provided for in the case of an international war outside of 
America and without affecting the duties contracted by those 



APPENDIXES 



167 



American States members of the League of Nations, the 
High Contracting Parties reaffirm their loyalty to the prin- 
ciples enunciated in the five agreements referred to in Article 
I, and they agree that in the case of an outbreak of hostilities 
or threat of an outbreak of hostilities between two or more 
of them they shall, through consultation, immediately en- 
deavour to adopt in their character as neutrals a common 
and solidary attitude, in order to discourage or prevent the 
spread or prolongation of hostilities. 

With this object, and having in mind the diversity of cases 
and circumstances, they may consider the imposition of pro- 
hibitions or restrictions on the sale or shipment of arms, 
munitions, and implements of war, loans or other financial 
help to the States in conflict, in accordance with the munici- 
pal legislation of the High Contracting Parties, and without 
detriment to their obligations derived from other treaties to 
which they are or may become parties. 

ARTICLE VII 

Nothing contained in the present Convention shall be 
understood as affecting the rights and duties of the High 
Contracting Parties which are at the same time members of 
the League of Nations. 

ARTICLE VIII 

The present Convention shall be ratified by the High Con- 
tracting Parties in accordance with their constitutional pro- 
cedures. The original Convention and the instruments of 
ratification shall be deposited with the Ministry of Foreign 
Affairs of the Argentine Eepublic, which shall communicate 
the ratifications to the other signatory States. It shall come 
into effect when ratifications have been deposited by not less 
than eleven of the signatory States. 

The Convention shall remain in force indefinitely, but it 
may be denounced by any of the High Contracting Parties, 
such denunciation to be effective one year after the date upon 
which such notification has been given. Notice of denuncia- 
tion shall be communicated to the Ministry of Foreign Af- 
fairs of the Argentine Republic, which shall transmit copies 



158 APPENDIXES 

thereof to the other signatory States. Denunciation shall 
not be regarded as valid if the Party making such denuncia- 
tion shall be actually in a state of war, or shall be engaged 
in hostilities without fulfilling the provisions established by 
this Convention. 

In witness whereof, the Plenipotentiaries above mentioned 
have signed this Treaty in English, Spanish, Portuguese, and 
French and have affixed thereto their respective seals, in the 
City of Buenos Aires, Capital of the Argentine Republic,, 
this twenty-third day of December, of the year 1936. 

RESERVATIONS 

Reservation of the Argentine Delegation 

In no case, under Article VI, can foodstuffs or raw mate- 
rials destined for the civil populations of belligerent coun- 
tries be considered as contraband of war, nor shall there 
exist any duty to prohibit credits for the acquisition of said 
foodstuffs or raw materials which have the destination 
indicated. 

With reference to the embargo on arms, each Nation may 
reserve freedom of action in the face of a war of aggression. 

Reservation of the Delegation of Paraguay 

In no case, under Article VI, can foodstuffs or raw mate- 
rials destined for the civil populations of belligerent coun- 
tries be considered as contraband of war, nor shall there exist 
any duty to prohibit credits for the acquisition of said food- 
stuffs or raw materials which have the destination indicated. 

With reference to the embargo on arms, each Nation may 
reserve freedom of action in the face of a war of aggression. 

Reservation of the Delegation of El Salvador 

With reservation with respect to the idea of continental 
solidarity when confronted by foreign aggression. 

Reservation of the Delegation of Colombia 

In signing this Convention, the Delegation of Colombia 
understands that the phrase "in their character as neutrals," 
which appears in Articles V and VI, implies a new concept 



APPENDIXES 169 

of international law which allows a distinction to be drawn 
between the aggressor and the attacked, and to treat them 
differently. At the same time, the Delegation of Colombia 
consider it necessary, in order to assure the full and effective 
application of this Pact, to set down in writing the follow* 
ing definition of the aggressor: 

That State shall be considered as an aggressor which be- 
comes responsible for one or several of the following acts: 

(a) That its armed forces, to whatever branch they may 
belong, illegally cross the land, sea or air frontiers of other 
States. When the violation of the territory of a State has 
been effected by irresponsible bands organized within or out- 
side of its territory and which have received direct or indi- 
rect help from another State, such violation shall be con- 
sidered equivalent, for the purposes of the present Article, 
to that effected by the regular forces of the State responsible 
for the aggression ; 

( b ) That it has intervened in a unilateral or illegal way 
in the internal or external affairs of another State; 

(c) That it has refused to fulfill a legally given arbitral 
decision or sentence of international justice. 

No consideration of any kind, whether political, military, 
economic or of any other kind, may serve as an excuse or 
justification for the aggression here anticipated. 



VIII 

Additional Protocol Relative to Non-Intervention 

(U. S. Treaty Series, No. 923) 

The Governments represented at the Inter-American 
Conference for the Maintenance of Peace, 

Desiring to assure the benefits of peace in their mutual 
relations and in their relations with all the nations of the 
earth, and to abolish the practice of intervention; and 

Taking into account that the Convention on Rights and 
Duties of States, signed at the Seventh International Con- 
ference of American States, December 26, 1933, solemnly 

93707 — 39—12 



^70 APPENDIXES 

affirmed the fundamental principle that "no State has the 
right to intervene in the internal or external affairs of 
another." 

Have resolved to reaffirm this principle through the ne- 
gotiation of the following Additional Protocol, and to that 
end they have appointed the Plenipotentiaries hereafter 
mentioned. 

[Here follow the names of the Plenipotentiaries.] 
Who, after having deposited their full powers, found to 
be in good and due form, have agreed as follows: 

ARTICLE I 

The High Contracting Parties declare inadmissible the 
intervention of any one of them, directly or indirectly, and 
for whatever reason, in the internal or external affairs of 
any other of the Parties. 

The violation of the provisions of this Article shall give 
rise to mutual consultation, with the object of exchanging 
views and seeking methods of peaceful adjustment. 

ARTICLE II 

It is agreed that every question concerning the interpre- 
tation of the present Additional Protocol, which it has 
not been possible to settle through diplomatic channels, 
shall be submitted to the procedure of conciliation provided 
for in the agreements in force, or to arbitration, or to 
judicial settlement. 

ARTICLE III 

The present Additional Protocol shall be ratified by the 
High Contracting Parties in conformity with their respec- 
tive constitutional procedures. The original instrument 
and the instruments of ratification shall be deposited in the 
Ministry of Foreign Affairs of the Argentine Republic, 
which shall communicate the ratifications to the other sig- 
natories. The Additional Protocol shall come into effect 
between the High Contracting Parties in the order in which 
they shall have deposited their ratifications. 



APPENDIXES 271 

ARTICLE IV 

The present Additional Protocol shall remain in effect 
indefinitely, but may be denounced by means of one year's 
notice, after the expiration of which period the Protocol 
shall cease in its effects as regards the party which de- 
nounces it but shall remain in effect for the remaining 
signatory States. Denunciations shall be addressed to the 
Government of the Argentine Eepublic, which shall notify 
them to the other contracting States. 

In witness whereof, the above mentioned Plenipotentiaries 
sign the present Additional Protocol in English, Spanish, 
Portugese, and French and hereunto affix their respective 
seals, at the City of Buenos Aires, Capital of the Argentine 
Republic, on the twenty-third day of the month of Decem- 
ber, nineteen hundred and thirty-six. 



IX 

[Public Resolution — No. 27 — 75th Congress] 

[Chapter 146 — 1st Session] 

[S. J. Res. 51] 

JOINT RESOLUTION 

To amend the joint resolution entitled "Joint resolution providing 
for the prohibition of the export of arms, ammunition, and imple- 
ments of war to belligerent countries ; the prohibition of the trans- 
portation of arms, ammunition, and implements of war by vessels 
of the United States for the use of belligerent states ; for the regis- 
tration and licensing of persons engaged in the business of manu- 
facturing, exporting, or importing arms, ammunition, or implements 
of war; and restricting travel by American citizens on belligerent 
ships during war," approved August 31, 1935, as amended. 

Resolved by the Senate and House of Representatives of 
the United States of America in Congress assembled , That 
the joint resolution entitled "Joint resolution providing for 
the prohibition of the export of arms, ammunition, and im- 
plements of war to belligerent countries ; the prohibition of 



172 APPENDIXES 

the transportation of arms, ammunition, and implements of 
war by vessels of the United States for the use of belligerent 
states ; for the registration and licensing of persons engaged 
in the business of manufacturing, exporting, or importing 
arms, ammunition, or implements of war; and restricting 
travel by American citizens on belligerent ships during 
war," approved August 31, 1935, as amended, is amended 
to read as follows : 

"export of arms, ammunition, and implements of war 

"Section 1. (a) Whenever the President shall find that 
there exists a state of war between, or among two or more 
foreign states, the President shall proclaim such fact, and 
it shall thereafter be unlawful to export, or attempt to ex- 
port, or cause to be exported, arms, ammunition, or imple- 
ments of war from any place in the United States to 
any belligerent state named in such proclamation, or to any 
neutral state for transshipment to, or for the use of, any 
such belligerent state. 

"(b) The President shall, from time to time, by procla- 
mation, extend such embargo upon the export of arms, am- 
munition, or implements of war to other states as and when 
they may become involved in such war. 

"(c) Whenever the President shall find that a state of 
civil strife exists in a foreign state and that such civil strife 
is of a magnitude or is being conducted under such condi- 
tions that the export of arms, ammunition, or implements 
of war from the United States to such foreign state would 
threaten or endanger the peace of the United States, the 
President shall proclaim such fact, and it shall thereafter 
be unlawful to export, or attempt to export, or cause to be 
exported, arms, ammunition, or implements of war from 
any place in the United States to such foreign state, or to 
any neutral state for transshipment to, or for the use of, 
such foreign state. 

"(d) The President shall, from time to time by proclama- 
tion, definitely enumerate the arms, ammunition, and im- 
plements of war, the export of which is prohibited by this- 
section. The arms, ammunition, and implements of war so- 
enumerated shall include those enumerated in the Presi- 



APPENDIXES 173 

•dent's proclamation Numbered 2163, of April 10, 1936, but 
shall not include raw materials or any other articles or ma- 
terials not of the same general character as those enumer- 
ated in the said proclamation, and in the Convention for 
the Supervision of the International Trade in Arms and 
Ammunition and in Implements of War, signed at Geneva 
June 17, 1925. 

"(e) Whoever, in violation of any of the provisions of 
this Act, shall export, or attempt to export, or cause to be 
exported, arms, ammunition, or implements of war from the 
United States shall be fined not more than $10,000, or im- 
prisoned not more than five years, or both, and the prop- 
erty, vessel, or vehicle containing the same shall be subject 
to the provisions of sections 1 to 8, inclusive, title 6, chapter 
30, of the Act approved June 15, 1917 (40 Stat. 223-225; 
U. S. C, 1934 ed., title 22, sees. 238-245). 

"(f) In the case of the forfeiture of any arms, ammuni- 
tion, or implements of war by reason of a violation of this 
Act, no public or private sale shall be required; but such 
arms, ammunition, or implements of war shall be delivered 
to the Secretary of War for such use or disposal thereof as 
shall be approved by the President of the United States. 

"(g) Whenever, in the judgment of the President, the 
conditions which have caused him to issue any proclamation 
under the authority of this section have ceased to exist, he 
shall revoke the same, and the provisions of this section 
shall thereupon cease to apply with respect to the state or 
states named in such proclamation, except with respect to 
offenses committed, or forfeitures incurred, prior to such 
revocation. 

"export of other articles and materials 

"Sec. 2. (a) Whenever the President shall have issued a 
proclamation under the authority of section 1 of this Act 
and he shall thereafter find that the placing of restrictions 
on the shipment of certain articles or materials in addition 
to arms, ammunition, and implements of war from the 
United States to belligerent states, or to a state wherein 
civil strife exists, is necessary to promote the security or 
preserve the peace of the United States or to protect the 



174 APPENDIXES 

lives of citizens of the United States, he shall so proclaim, 
and it shall thereafter be unlawful, except under such limi- 
tations and exceptions as the President may prescribe as to 
lakes, rivers, and inland waters bordering on the United 
States, and as to transportation on or over lands bordering- 
on the United States, for any American vessel to carry such 
articles or materials to any belligerent state, or to any state 
wherein civil strife exists, named in such proclamation is- 
sued under the authority of section 1 of this Act, or to any 
neutral state for transshipment to, or for the use of, any 
such belligerent state or any such state wherein civil strife 
exists. The President shall by proclamation from time to 
time definitely enumerate the articles and materials which 
it shall be unlawful for American vessels to so transport. 

"(b) Whenever the President shall have issued a procla- 
mation under the authority of section 1 of this Act and he 
shall thereafter find that the placing of restrictions on the 
export of articles or materials from the United States to 
belligerent states, or to a state wherein civil strife exists, is 
necessary to promote the security or preserve the peace of 
the United States or to protect the lives or commerce of 
citizens of the United States, he shall so proclaim, and it 
shall thereafter be unlawful, except under such limitations 
and exceptions as the President may prescribe as to lakes, 
rivers, and inland waters bordering on the United States, 
and as to transportation on or over land bordering on the 
United States, to export or transport, or attempt to export 
or transport, or cause to be exported or transported, from 
the United States to any belligerent state, or to any state 
wherein civil strife exists, named in such proclamation is- 
sued under the authority of section 1 of this Act, or to any 
neutral state for transshipment to, or for the use of, any 
such belligerent state or any such state wherein civil strife 
exists, any articles or materials whatever until all right, 
title, and interest therein shall have been transferred to some 
foreign government, agency, institution, association, part- 
nership, corporation, or national. The shipper of such ar- 
ticles or materials shall be required to file with the collector 
of the port from which they are to be exported a declaration 
under oath that there exists in citizens of the United States 
no right, title, or interest in such articles or materials, and 



APPENDIXES 175 

to comply with such rules and regulations as shall be pro- 
mulgated from time to time by the President. Any such 
declaration so filed shall be a conclusive estoppel against 
any claim of any citizen of the United States of right, title, 
or interest in such articles or materials. Insurance written 
by underwriters on any articles or materials the export of 
which is prohibited by this Act, or on articles or materials 
carried by an American vessel in violation of subsection (a) 
of this section, shall not be deemed an American interest 
therein, and no insurance policy issued on such articles or 
materials and no loss incurred thereunder or by the owner 
of the vessel carrying the same shall be made a basis of any 
claim put forward by the Government of the United States. 

"(c) The President shall from time to time by proclama- 
tion extend such restrictions as are imposed under the au- 
thority of this section to other states as and when they may 
be declared to become belligerent states under proclamations 
issued under the authority of section 1 of this Act. 

"(d) The President may from time to time change, 
modify, or revoke in whole or in part any proclamations 
issued by him under the authority of this section. 

"(e) Except with respect to offenses committed, or for- 
feitures incurred, prior to May 1, 1939, this section and all 
proclamations issued thereunder shall not be effective after 
May 1, 1939. 

"financial transactions 

"Sec. 3. (a) Whenever the President shall have issued a 
proclamation under the authority of section 1 of this Act, it 
shall thereafter be unlawful for any person within the 
United States to purchase, sell, or exchange bonds, securi- 
ties, or other obligations of the government of any bellig- 
erent state or of any state wherein civil strife exists, named 
in such proclamation, or of any political subdivision of 
any such state, or of any person acting for or on behalf of 
the government of any such state, or of any faction or as- 
serted government within any such state wherein civil strife 
exists, or of any person acting for or on behalf of any fac- 
tion or asserted government within any such state wherein 
civil strife exists, issued after the date of such proclama- 
tion, or to make any loan or extend any credit to any such 



176 APPENDIXES 

government, political subdivision, faction, asserted govern- 
ment, or person, or to solicit or receive any contribution for 
any such government, political subdivision, faction, asserted 
government, or person: Provided, That if the President 
shall find that such action will serve to protect the com- 
mercial or other interests of the United States or its citizens, 
he may, in his discretion, and to such extent and under such 
regulations as he may prescribe, except from the operation 
of this section ordinary commercial credits and short-time 
obligations in aid of legal transactions and of a character 
customarily used in normal peacetime commercial transac- 
tions. Nothing in this subsection shall be construed to pro- 
hibit the solicitation or collection of funds to be used for 
medical aid and assistance, or for food and clothing to re- 
lieve human suffering, when such solicitation or collection 
of funds is made on behalf of and for use by any person or 
organization which is not acting for or on behalf of any 
such government, political subdivision, faction, or asserted 
government, but all such solicitations and collections of 
funds shall be subject to the approval of the President and 
shall be made under such rules and regulations as he shall 
prescribe. 

"(b) The provisions of this section shall not apply to a 
renewal or adjustment of such indebtedness as may exist 
on the date of the President's proclamation. 

"(c) Whoever shall violate the provisions of this section 
or of any regulations issued hereunder shall, upon convic- 
tion thereof, be fined not more than $50,000 or imprisoned 
for not more than five years, or both. Should the violation 
be by a corporation, organization, or association, each officer 
or agent thereof participating in the violation may be liable 
to the penalty herein prescribed. 

"(d) Whenever the President shall have revoked any 
such proclamation issued under the authority of section 1 
of this Act, the provisions of this section and of any regula- 
tions issued by the President hereunder shall thereupon 
cease to apply with respect to the state or states named in 
such proclamation, except with respect to offenses committed 
prior to such revocation 



APPENDIXES 177 

"EXCEPTIONS AMERICAN REPUBLICS 

"Sec. 4. This Act shall not apply to an American republic 
or republics engaged in war against a non-American state 
or states, provided the American republic is not cooperating 
with a non- American state or states in such war. 

"national munitions control board 

"Sec. 5. (a) There is hereby established a National Muni- 
tions Control Board (hereinafter referred to as the 'Board') 
to carry out the provisions of this Act. The Board shall 
consist of the Secretary of State, who shall be chairman and 
executive officer of the Board, the Secretary of the Treas- 
ury, the Secretary of War, the Secretary of the Navy, and 
the Secretary of Commerce. Except as otherwise provided 
in this Act, or by other law, the administration of this Act 
is vested in the Department of State. The Secretary of 
State shall promulgate such rules and regulations with re- 
gard to the enforcement of this section as he may deem nec- 
essary to carry out its provisions. The Board shall be con- 
vened by the chairman and shall hold at least one meeting a 
year. 

"(b) Every person who engages in the business of manu- 
facturing, exporting, or importing any of the arms, am- 
munition, or implements of war referred to in this Act, 
whether as an exporter, importer, manufacturer, or dealer, 
shall register with the Secretary of State his name, or busi- 
ness name, principal place of business, and places of busi- 
ness in the United States, and a list of the arms, ammuni- 
tion, and implements of war which he manufactures, im- 
ports, or exports. 

"(c) Every person required to register under this section 
shall notify the Secretary of State of any change in the 
arms, ammunition, or implements of war which he exports, 
imports, or manufactures; and upon such notification the 
Secretary of State shall issue to such person an amended 
certificate of registration, free of charge, which shall remain 
valid until the date of expiration of the original certificate. 
Every person required to register under the provisions of 
this section shall pay a registration fee of $500, unless he 



278 APPENDIXES 

manufactured, exported, or imported arms, ammunition, 
and implements of war to a total sales value of less than 
$50,000 during the twelve months immediately preceding 
his registration, in which case he shall pay a registration fee 
of $100. Upon receipt of the required registration fee, the 
Secretary of State shall issue a registration certificate valid 
for five years, which shall be renewable for further periods 
of five years upon the payment for each renewal of a fee of 
$500 in the case of persons who manufactured, exported, or 
imported arms, ammunition, and implements of war to a 
total sales value of more than $50,000 during the twelve 
months immediately preceding the renewal, or a fee of $100 
in the case of persons who manufactured, exported, or im- 
ported arms, ammunition, and implements of war to a total 
sales value of less than $50,000 during the twelve months 
immediately preceding the renewal. The Secretary of the 
Treasury is hereby directed to refund, out of any moneys in 
the Treasury not otherwise appropriated, the sum of $400 
to every person who shall have paid a registration fee of 
$500 pursuant to this Act, who manufactured, exported, or 
imported arms, ammunition, and implements of war to a 
total sales value of less than $50,000 during the twelve 
months immediately preceding his registration. 

"(d) It shall be unlawful for any person to export, or 
attempt to export, from the United States to any other state, 
any of the arms, ammunition, or implements of war referred 
to in this Act, or to import, or attempt to import, to the 
United States from any other state, any of the arms, am- 
munition, or implements of war referred to in this Act, 
without first having obtained a license therefor. 

"(e) All persons required to register under this section 
shall maintain, subject to the inspection of the Secretary of 
State, or any person or persons designated by him, such per- 
manent records of manufacture for export, importation, 
and exportation of arms, ammunition, and implements of 
was as the Secretary of State shall prescribe. 

"(f) Licenses shall be issued to persons who have regis- 
tered as herein provided for, except in cases of export or 
import licenses where the export of arms, ammunition, or 
implements of war would be in violation of this Act or any 



APPENDIXES 179 

•other law of the United States, or of a treaty to which the 
United States is a party, in which cases such licenses shall 
not be issued. 

"(g) Whenever the President shall have issued a procla- 
mation under the authority of section 1 of this Act, all 
licenses theretofore issued under this Act shall ipso facto and 
immediately upon the issuance of such proclamation, cease 
to grant authority to export arms, ammunition, or imple- 
ments of war from any place in the United States to any 
belligerent state, or to any state wherein civil strife exists, 
named in such proclamation, or to any neutral state for 
transshipment to, or for the use of, any such belligerent 
state or any such state wherein civil strife exists; and said 
licenses, insofar as the grant of authority to export to the 
state or states named in such proclamation is concerned, 
shall be null and void. 

"(h) No purchase of arms, ammunition, or implements 
of war shall be made on behalf of the United States by any 
officer, executive department, or independent establishment 
of the Government from any person who shall have failed 
to register under the provisions of this Act. 

"(i) The provisions of the Act of August 29, 1916, re- 
lating to the sale of ordnance and stores to the Government 
of Cuba (39 Stat. 619, 643; U. S. C, 1934 ed., title 50, sec. 
72), are hereby repealed as of December 31, 1937. 

"(j) The Board shall make an annual report to Congress, 
copies of which shall be distributed as are other reports 
transmitted to Congress. Such reports shall contain such 
information and data collected by the Board as may be con- 
sidered of value in the determination of questions connected 
with the control of trade in arms, ammunition, and imple- 
ments of war. The Board shall include in such reports a 
list of all persons required to register under the provisions 
of this Act, and full information concerning the licenses 
issued hereunder. 

"(k) The President is hereby authorized to proclaim 
upon recommendation of the Board from time to time a list 
of articles which shall be considered arms, ammunition, 
and implements of war for the purposes of this section. 



130 APPENDIXES 

"AMERICAN VESSELS PROHIBITED FROM CARRYING ARMS TO 
BELLIGERENT STATES 

"Sec. 6. (a) Whenever the President shall have issued a 
proclamation under the authority of section 1 of this Act, it 
shall thereafter be unlawful, until such proclamation is re- 
voked, for any American vessel to carry any arms, ammuni- 
tion, or implements of war to any belligerent state, or to 
any state wherein civil strife exists, named in such proclama- 
tion, or to any neutral state for transshipment to, or for 
the use of, any such belligerent state or any such state 
wherein civil strife exists. 

"(b) Whoever, in violation of the provisions of this sec- 
tion, shall take, or attempt to take, or shall authorize, hire, 
or solicit another to take, any American vessel carrying 
such cargo out of port or from the jurisdiction of the United 
States shall be fined not more than $10,000, or imprisoned 
not more than five years, or both; and, in addition, such 
vessel, and her tackle, apparel, furniture, and equipment, 
and the arms, ammunition, and implements of war on board, 
shall be forfeited to the United States. 

"USE OF AMERICAN PORTS AS BASE OF SUPPLY 

"Sec. 7. (a) Whenever, during any war in which the 
United States is neutral, the President, or any person there- 
unto authorized by him, shall have cause to believe that any 
vessel, domestic or foreign, whether requiring clearance or 
not, is about to carry out of a port of the United States, 
fuel, men, arms, ammunition, implements of war, or other 
supplies to any warship, tender, or supply ship of a bellig- 
erent state, but the evidence is not deemed sufficient to 
justify forbidding the departure of the vessel as provided 
for by section 1, title V, chapter 30, of the Act approved 
June 15, 1917 (40 Stat. 217, 221; U. S. C, 1934 ed., title 18, 
sec. 31), and if, in the President's judgment, such action 
will serve to maintain peace between the United States 
and foreign states, or to protect the commercial interests 
of the United States and its citizens, or to promote the 
security or neutrality of the United States, he shall have 
the power and it shall be his duty to require the owner, 



APPENDIXES Igl 

master, or person in command thereof, before departing 
from a port of the United States, to give a bond to the 
United States, with sufficient sureties, in such amount as 
he shall deem proper, conditioned that the vessel will not 
deliver the men, or any part of the cargo, to any warship, 
tender, or supply ship of a belligerent state. 

"(b) If the President, or any person thereunto author- 
ized by him, shall find that a vessel, domestic or foreign, 
in a port of the United States, has previously cleared from 
a port of the United States during such war and delivered 
its cargo or any part thereof to a warship, tender, or supply 
ship of a belligerent state, he may prohibit the departure 
of such vessel during the duration of the war. 

"submarines and armed merchant vessels 

"Sec. 8. Whenever, during any war in which the United 
States is neutral, the President shall find that special re- 
strictions placed on the use of the ports and territorial 
waters of the United States by the submarines or armed 
merchant vessels of a foreign state, will serve to main- 
tain peace between the United States and foreign states, 
or to protect the commercial interests of the United States 
and its citizens, or to promote the security of the United 
Sates, and shall make proclamation thereof, it shall there- 
after be unlawful for any such submarine or armed mer- 
chant vessel to enter a port or the territorial waters of the 
United States or to depart therefrom, except under such 
conditions and subject to such limitations as the President 
may prescribe. Whenever, in his judgment, the conditions 
which have caused him to issue his proclamation have ceased 
to exist, he shall revoke his proclamation and the provi- 
sions of this section shall thereupon cease to apply. 

"travel on vessels of belligerent states 

"Sec. 9. Whenever the President shall have issued a proc- 
lamation under the authority of section 1 of this Act it shall 
thereafter be unlawful for any citizen of the United States 
to travel on any vessel of the state or states named in such 
proclamation, except in accordance with such rules and 
regulations as the President shall prescribe : Provided, how- 



Ig2 APPENDIXES 

ever, That the provisions of this section shall not apply to 
a citizen of the United States traveling on a vessel whose 
voyage was begun in advance of the date of the President's 
proclamation, and who had no opportunity to discontinue 
his voyage after that date: And provided further, That 
they shall not apply under ninety days after the date of 
the President's proclamation to a citizen of the United 
States returning from a foreign state to the United States. 
Whenever, in the President's judgment, the conditions 
which have caused him to issue his proclamation have ceased 
to exist, he shall revoke his proclamation and the provisions 
of this section shall thereupon cease to apply with respect 
to the state or states named in such proclamation, except 
with respect to offenses committed prior to such revocation. 

"ARMING OF AMERICAN MERCHANT VESSELS PROHIBITED 

"Sec. 10. Whenever the President shall have issued a 
proclamation under the authority of section 1, it shall there- 
after be unlawful, until such proclamation is revoked, for 
any American vessel engaged in commerce with any bellig- 
erent state, or any state wherein civil strife exists, named 
in such proclamation, to be armed or to carry any arma- 
ment, arms, ammunition, or implements of war, except 
small arms and ammunition therefor which the President 
may deem necessary and shall publicly designate for the 
preservation of discipline aboard such vessels. 

"regulations 

"Sec. 11. The President may, from time to time, pro- 
mulgate such rules and regulations, not inconsistent with 
law, as may be necessary and proper to carry out any of 
the provisions of this Act; and he may exercise any power 
or authority conferred on him by this Act through such 
officer or officers, or agency or agencies, as he shall direct. 

"general penalty provisions 

"Sec. 12. In every case of the violation of any of the 
provisions of this Act or of any rule or regulation issued 
pursuant thereto where a specific penalty is not herein 
provided, such violator or violators, upon conviction, shall 



APPENDIXES 1g£ 

be fined not more than $10,000, or imprisoned not more than 
five years, or both. 

"definitions 

"Sec. 13. For the purposes of this Act — 

"(a) The term 'United States,' when used in a geographi- 
cal sense, includes the several States and Territories, the 
insular possessions of the United States (including the 
Philippine Islands), the Canal Zone, and the District of 
Columbia. 

"(b) The term 'person' includes a partnership, company, 
association, or corporation, as well as a natural person. 

"(c) The term 'vessel' means every description of water- 
craft (including aircraft) or other contrivance used, or 
capable of being used, as a means of transportation on, 
under, or over water. 

"(d) The term 'American vessel' means any vessel (in- 
cluding aircraft) documented under the laws of the United 
States. 

"(e) The term 'vehicle' means every description of car- 
riage (including aircraft) or other contrivance used, or 
capable of being used, as a means of transportation on or 
over land. 

"(f) The term 'state' shall include nation, government, 
and country. 

"separability of provisions 

"Sec. 14. If any of the provisions of this Act, or the ap- 
plication thereof to any person or circumstance, is held in- 
valid, the remainder of the Act, and the application of 
such provision to other persons or circumstances, shall not 
be affected thereby. 

"appropriations 

"Sec. 15. There is hereby authorized to be appropriated 
from time to time, out of any money in the Treasury not 
otherwise appropriated, such amounts as may be necessary 
to carry out the provisions and accomplish the purposes 
of this Act." 

Approved, May 1, 1937, 6 : 30 p. m., Central Standard 
Time. 



INDEX 



Page 

Aerial commerce 118 

Aerial jurisdiction 125 

in Arctic 105 

maritime 126, 127 

proposed extension of 126 

Aerial sovereignty 117 

Aerial warfare, rules for 119 

Africa, occupation in 72 

Aggression 27 

Aircraft: 

belligerent, in neutral territory 118, 119 

in distress . 119 

military, in time of peace 119 

neutral 119 

American states: 

conferences of 24 

proposed conferences of neutrals, 1917 22 

seventh international conference of 27 

solidarity of 19, 22 

transit of goods across neutral 31 

U. S. joint resolution, May 1, 1937 as to 34 

Antarctic area 85, 113 

claims to 102 

sector theory in 115 

(See also Polar regions.) 

Antarctic ice 83 

Antiwar treaty on nonaggression and conciliation 8, 27 

Text 152 

Arctic area: 

fishing rights in 111 

sovereignty in 110 

U. S. and _ 88 

(See also Polar regions.) 

Arctic ice 83 

Armed forces, landing of 61 

Arms and munitions, shipment of 21,47,58,59 

Athenes, The 32 

Bays 100 

Behring Sea, conservation of fur seal in 94 

Behring Sea Award 106 

93707—38 13 185 



186 INDEX 

Page 

Behring's Strait 85, 87, 91 

Belligerency, military operations and _ 43 

Belligerent rights 20ff. 

Berlin Act of 1885 72 

Bermuda, neutral waters of 54 

Blockade 43 

Boundaries: 

determination of 91fi\ 

Great Britian and Russia, 1825 91 

United States and Russia, 1867 88 

Brazil : 

as to maintenance of peace 62 

declaration of war 22 

Breitfus, L. L., as to aerial jurisdiction in the Arctic 105 

British Merchant Shipping Act, 1936 59 

British Settlements Act, 1887 113 

Buenos Aires: 

conference of, 1936 25 

conventions of 28 

Bulama case, 1870 73 

By nkershoek, definition of neutrality by 17 

Canada, jurisdiction over Arctic 107ff., 110 

China: 

territorial integrity of 80 

U. S. action as to control of shipments of arms and muni- 
tions to 46,58 

Civil populations of belligerent states 32, 33 

Civil strife, Spanish 59 

Clipperton Island case 76 

Closed sea 87 

Codification of International Law, Hague Conference on 107, 128 

Collective security 65 

Commission of Jurists, 1923 119, 126 

Conciliation, antiwar treaty on agression and 27, 152 

Condominium 84 

Congress of Panama, 1826 24 

Contiguity, doctrine of 77, 81, 85, 96, 100 

Continuous voyage 31 

Contraband: 

Argentine reservation regarding 33 

by substitution 33 

carriage of 31 

conditional 32 

destination of 33 

proportion of, in cargo 36 

Convention for the maintenance, preservation, and reestablish- 

ment of peace 28 

Text 160 



INDEX lg7 

Page 

Convention of inter- American conciliation 7 

Text 138 

Convention of Lausanne, 1923 12 

Convention on maritime neutrality, Habana, 1928 28, 31 

Convention of Montreux, 1936 11 

Convention to coordinate, extend, and assure the fulfillment of 

existing treaties 5, 6, 33 

Text 163 

Coolidge, President Calvin 4 

Custom's regulations, Russian, 1910 96 

Declaration of London, 1909, as to enemy persons on neutral 

vessels 28f f . 

Declaration of War 43, 48 

Brazilian 22 

Defensive sea areas 13 

Deutschland, The 121, 123 

Discovery 72, 73, 87, 114 

Institut de Droit as to 74 

Egoriew, W 107 

Embargo, domestic act 67 

Embargo Act, 1807 52 

Enemy persons, carriage of 28ff., 120 

Espionage Act, U. S., 1917 58 

Export of arms and munitions: 

joint control of 58 

U. S. restriction of 34, 46, 56ff. 

Falkland Islands 75, 102, 115 

Fauchille: 

as to occupation 103 

as to polar domain 83 

Fisheries: 

Anglo-Soviet agreement as to 100 

Russian claims as to 98 

Floating ice, in Arctic 104 

France, as to maintenance of peace 63 

Frobisher, Martin 107 

Fur seals 94, 106 

General Convention of Inter-American Conciliation. See Con- 
vention of Inter-American Conciliation. 
General Treaty of Inter- American Arbitration. See Treaty of 

Inter- American Arbitration. 
Gondra treaty. See Treaty to avoid and prevent conflicts. 
Great Britain: 

as to Island of Bulama 73 

as to maintenance of peace 63 

as to U. S. liquor laws 66 

boundary treaty with Russia, 1825 91 

claims to Ross Sea 113 



188 TSDMSK 

Great Britain — Continued. p age 

claims to Zambesi 75 

fisher}' agreement with U. S. S. R 100 

hovering by warships of 53 

sovereignty in Arctic 111 

treaty ^ith United States, 1924 66 

Greenland, Eastern, Legal Status of 83, 115, 117 

Grotius: 

as to declaration of war 47 

as to limits of straits 10 

Gulf of Finland 44 

Habana Convention, 1928 25f. 

Hague Convention, 1907, as to opening of hostilities 50ff. 

Hakan, The 32 

Hinterland doctrine 95 

Hostilities, commencement of 47, 49 

Hovering 53f f . 

Hughes, Secretary, as to export of arms to China 46 

Hull, Secretary 4 

as to American foreign policy 61 

Hyde, Charles C: 

as to claims to Greenland 116 

as to sovereignty in polar area 84 

Ice, polar, jurisdiction over 104 

Innocent passage 35, 65, 67, 127, 129 

Institut de Droit International: 

as to declaration of war 48 

as to occupation 74 

Inter- American Conference for the Maintenance of Peace 7, 9 

International law, observance of 10 

Intervention 9, 28 

Italy, as to enemy persons on neutral vessel 30 

Jan Mayen Island 112 

Japan : 

as to world peace 63 

special interests in China of 80 

Joint action, Peru's suggestion as to 20 

Jursidiction: 

acquisition of 71 

aerial. See Aerial jurisdiction. 

maritime 87,97, 105 

in polar regions 104 

neutral 118 

"Jusqu'a," interpretation of 92ff. 

Lakhtine, as to jurisdiction in Arctic lOlff. 

Lam Mow v. Xagle 71 

Lansing-Ishii note, 1917 80 

League of Nations Covenant, Article 21 22 



INDEX 



189 



Page 

League of neutrals 21 

Legal Status of Eastern Greenland, case of 83, 115, 117 

Liquor treaties, United States and Great Britain 66 

" Low-water mark" 128 

Marginal sea 97, 107 

Medea, The 32 

Merchant vessels, neutral: 

prize crew on 36 

rights of 35 

Mexico, war of United States with, recognition of 42 

Miller, David Hunter 114 

Monastery of Saint Naoum, case of 92 

Monroe doctrine 22 

Neutral commerce 44 

British inference with 53 

in war materials 57 

Neutral jurisdiction, aircraft and 118 

Neutral nationals, on high seas 37 

Neutral ports, entrance into 122, 124 

Neutral rights 20f., 53 

Scandinavian attitude as to 

American solidarity as to, 1914 19 

Neutral territory : 

belligerent aircraft in 118 

transit of goods across 31 

Neutral waters, belligerent vessels outside 54 

Neutrality : 

concepts of 17f. 

convention on maritime 25 

domestic regulations as to 45 

inter-American attitude toward — 6,19 

Neutrality Act, U. S. 1937 34, 45, 115 

Text 171 

Neutralization, of American waters 21 

Nine-power treaty 22 

Nonintervention, protocol relative to: 

Text 169 

Norme, Grove, and Hardanger, The, cited 31 

Northwest coast of America, claims to 86 

Northwest passage 82 

Norway, sovereignty of: 

in Arctic 110 

over Jan Mayen Island 112 

over Spitzbergen Archipelago 90 

Occupation 72ff., 87, 96 

and notification 72, 101 

d' exploration 84, 103 



190 INDEX 

Occupation — Continued. Page 

d'habitation 84, 103 

effective 26 

Fauchille as to 103 

l'lnstitut de Droit on 74 

limit of territory acquired by 95 

Olney, Secretary of State, as to hinterland doctrine 95 

100-mile limit. See Territorial waters. 

"Open door" 22, 80 

Open diplomacy 23 

Oriental Trading Co 58 

Pacific Northwest, cession of, by Russia 88 

Pacific settlement of international disputes 10 

Palmas Island, case of 78 

Pan American treaties 4, 24 

Texts 132-183 

Pan American Union, creation of 24 

as to belligerent and neutral rights 20 

Passengers, with belligerent destination 28 

Peace, Secretary Hull as to 62 

Pecuniary debts, forcible collection of 10 

Peru: 

as to American solidarity, 1914 19 

proposed conference of American states 22 

Polar domain, Fauchille on 83 

Polar regions: 

aerial jurisdiction in 105 

American writers on 114 

exploration of 83 

Hyde as to sovereignty over 84 

jurisdiction over 67, 81, 105 

Lakhtine as to occupation in 101 

"Region of attraction" in 101, 104, 105 

territorial waters in 104ff . 

transit in 121 

use of merchant submarines in 121 

(See also Antarctic areas; Arctic areas.) 

Polar sector 116 

(See also Sector theory.) 
Portugal: 

as to Island of Bulama 73 

claims of, to Zambesi 74 

Prisoners of war 119 

Propinquity, doctrine of _' 77, 81 

Protection, of merchant vessels 14 

of nationals 14 

Radio, treaty provision as to use of 90 

Radio station, on high seas 127 



INDEX 191 

Page 

"Region of attraction" 101, 104, 105 

Regional agreements 6 

Regional understandings 22, 23 

Reservists, in transit 120 

on neutral ship 30 

Ross Dependency 113, 115 

Russia: 

boundary treaty with Great Britain, 1825 88, 91 

cession to United States of Pacific Northwest 88 

customs regulations 96, 97 

extension of jurisdiction, 12 miles 98 

maritime jurisdiction, 1912 97 

neutral trade with 44 

suggested blockade of 44 

territorial claims to Northwest, 1821 85 

Ukase of 1821 106 

Russo-Japanese convention, 1907 97 

Russo-Japanese fishery agreement 99 

Russo-Japanese war, commencement of 43 

Saavedra Lamas Treaty. See Antiwar treaty. 

Saint-Naoum, Monastery of, case of 92 

Sales, to belligerents 57 

Scandinavian states, joint action as to neutral rights 21 

Scott, James B., as to Arctic discovery 114 

Sector theory 106, 111, 116ff. 

Miller as to 114 

Smedal as to 117 

Sectors of attraction 104 

(See also Region of attraction.) 

Self-preservation 14, 60 

Ship North r. The King 71 

Smedal, Gustav, as to sector theory 117 

Sovereignty: 

over polar regions 85 

over unoccupied territory 116 

sector principle and 117 

South Africa, as to American foreign policy 64 

Spain, exportation of arms and ammunitions to 59 

Spheres of influence 95 

Spitzbergen Archipelago 90 

Strained relations 39f., 46 

attitude of United States Navy as to 49, 60 

Straits : 

Grotius as to limits of - 10 

innocent passage and 35 

restriction of passage through 12 

treaties relating to 11 



192 INDEX 

Submarines: Page 

entrance of, to neutral ports 124, 130, 131 

innocent passage of 65 

merchant , 122 

in polar areas 121 

Sverdrup Islands 111 

Ten-mile limit. See Territorial waters. 

Territorial conquest, proscription of 9 

Territorial integrity 80 

Territorial waters: 

Arctic 104ff. 

belligerent 35 

belligerent ships outside 54 

extent of 107,129 

3-mile limit _ 97,98 

10-mile limit 94,98 

12-mile limit 96-98 

100-mile limit 86, 87, 10.6 

"low-water mark" 128 

prohibitive zones outside 94 

Russian, 1909 96 

submarines in 65 

United States prohibition laws and 66 

Territorium nullius 76 

Territory: 

acquisition of 95, 97 

meaning of term 71 

Three-mile limit 66, 97, 127, 129 

Transit, of goods 31 

Travel: 

in war areas 37 

United States restrictions on 15ff. 

Treaties, sanctity of 62, 64 

Treaty for renunciation of war 7 

Treaty of inter- American arbitration 7 

Text 138 

Treaty of nonaggression and conciliation 8, 27 

Text 152 

Treaty of Washington, 1819 87 

Treaty to avoid or prevent conflicts between the American 

States (Gondra treaty) 7 

Text 132 

Trent case, the 28 

Twelve-mile limit. See Territorial waters. 

Troops, landing of 45, 61 

Ultimate destination 33, 39 



INDEX 193 

United States: Page 

Act of May 1, 1937 15, 34, 45 

Text 171 

as to blockade 44 

as to defensive sea areas 13 

as to hovering 53 

as to sale of war material by neutral persons 57 

attitude toward submarines in time of war 122, 125 

circular, October 15, 1914 56 

eighteenth amendment 65 

Espionage Act, 1917 58 

foreign policy of, 1937 62 

Neutrality Act, 1937 15, 34, 45 

prohibition laws of, and innocent passage 66 

restrictions on exports of arms, etc 52, 56, 60 

restrictions on travel 15 

Russian claims to Northwest and 86 

Treaty with Great Britain: 1924 66 

Treaty with Russia: 

1924 88 

1867 88,91 

1832 88 

United States Navy regulations 14, 30, 60 

United States of America v. Pelly and another 42 

United Socialist Soviet Republics: 

as to discoveries in Arctic 99, 103 

as to extent of territorial waters 107 

fishery agreement with Great Britain 100 

Unneutral service 29 

Use of force 14, 36, 41, 43, 60 

Vattel 73 

Venezuela, as to rights of neutrals 21 

Vessels: 

neutral, enemy persons on 28ff. 

merchant 35 

war, protection by Iff. 

"Vessels other than warships" 130 

Visit and search 12, 18, 67 

War: 

commencement of 43 

declaration of 22, 43, 48ff. 

defined 42 

state of 42f. 

United States and Mexico, 1846 42 

various concepts of 17 

War zones 36 

Wilson, President, peace aims of 23 

Wrangel Island _ 82 

Zambesi, Portuguese claims to 74 

o